Henry Ching v. United States

• Decision Date: 05 April 1920
• Docket Number: 3432.
• Parties: HENRY CHING v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

264 F. 639

HENRY CHING v. UNITED STATES.

No. 3432.

United States Court of Appeals, Ninth Circuit.

April 5, 1920

Frank E. Dominguez and Milton M. Cohen, both of Los Angeles, Cal for plaintiff in error.

Robert O'Connor, U.S. Atty., and Gordon Lawson, Asst. U.S Atty., both of Los Angeles, Cal.

Before GILBERT and HUNT, Circuit Judges, and RUDKIN, District Judge.

HUNT Circuit Judge.

Henry Ching was convicted under two counts of an indictment which charged him with knowingly and feloniously concealing and facilitating the concealment of opium prepared for smoking the opium having been imported into the United States from a foreign country, the defendant knowing that the opium prepared for smoking had been imported into the United States contrary to law. The second count charged that the defendant knowingly and feloniously did sell, dispense, and distribute morphine sulphate, cocaine hydrochloride, and heroin in certain bottles and cards, which were not the original stamped packages containing the morphine sulphate, cocaine hydrochloride, and heroin; the bottles and cards not being stamped as required by law, and the drugs not having been obtained from a registered dealer in pursuance of a prescription written for legitimate medical uses, as provided by the act of Congress approved February 24, 1919 (40 Stat. 1130), amending an act of Congress approved December 17, 1914, known as the Harrison Narcotic Law (Comp. St. Secs. 6287g-6287q).

The first count was drawn under the act approved January 17, 1914 (38 Stat. p. 275 (Comp. St. Secs. 8800-8801f), which provides that, if any person shall fraudulently or knowingly import into the United States any opium or any preparation or derivative thereof contrary to law, or shall receive, conceal, buy, sell or in any manner facilitate the transportation, concealment, or sale of such opium or preparation or derivative thereof after transportation, knowing the same to have been imported contrary to law, shall be fined or imprisoned as by the act provided. The statute also provides that, when upon the trial the defendant is shown to have or to have had possession of such opium or preparation, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury.

The second count is drawn under the act of Congress approved February 24, 1919 (Comp. St. Ann. Supp. 1919, Sec. 6287g), which, among other things, provides:

'It shall be unlawful for any person to purchase, sell, dispense or distribute any of the aforesaid drugs except in the original stamped package or from the original stamped package, and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the person in whose possession the same may be found; and the possession of any original stamped package containing any of the aforesaid drugs by any person who has not registered and paid special taxes as required by this section, shall be prima facie evidence of liability to such special tax.'

That language is followed by certain provisions which make the act inapplicable to any person having in his possession any of the drugs inhibited which had been obtained from a registered dealer in pursuance of a prescription written for legitimate medical uses, issued by a physician, dentist, veterinary surgeon or other practitioner registered under the provisions of the act.

It is contended that the court erred by compelling defendant over his objection to proceed to trial and in appointing an attorney to defend defendant. It appears that Ching, through Warren Williams, his counsel, had pleaded guilty, but at a later date the court declined to accept the plea of guilty which had theretofore been interposed, and ordered that a plea of not guilty as to both counts be interposed in behalf of defendant. On October 2, 1919, the case was called for trial; defendant and his counsel, W. J. Little, being present in open court. Mr. Little asked permission to withdraw from the case. The court denied the request, and thereupon appointed Mr. Little to act as attorney for the defendant, and thereupon, both parties having announced themselves as ready, the trial was proceeded with.

When the case was called, counsel for the government stated that he did not see the defendant in court, whereupon Mr Williams, who had formerly appeared for the defendant, stated to the court that he had notified the defendant, who had notified him that Mr. Little had been employed by him to defend the case. Thereupon Mr. Little stated to the court that defendant had told him that he did not wish him to try the case. Mr. Williams then said that he had called the attention of the defendant to the matter, and that defendant had assured him he would be ready with counsel to proceed with the trial. At this point the defendant appeared in person and was ordered into the custody of the marshal. Thereupon the case was called, whereupon Mr. Little expressed his wish to withdraw, stating that he did not represent the defendant, and that defendant said he did not wish him to represent him. Thereupon the court asked defendant what he would like to do with the...