Jung Quey v. United States

Decision Date03 May 1915
Docket Number2527.
PartiesJUNG QUEY et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Wm Hoff Cook and J. C. Campbell, both of San Francisco, Cal for plaintiffs in error.

John W Preston, U.S. Atty., of San Francisco, Cal., for the United States.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

ROSS Circuit Judge.

Section 37 of the Criminal Code of the United States, as amended (Act March 4, 1909, c. 321, 35 Stat. 1096 (Comp. St. 1913, Sec 10201)), declares:

'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.'

By its act of January 17, 1914, entitled 'An act to amend an act entitled 'An act to prohibit the importation and use of opium for other than medicinal purposes'' (St. Leg. 1913-14, p. 275, c. 9), Congress provided as follows:

'That after the first day of April, nineteen hundred and nine, it shall be unlawful to import into the United States opium in any form or any preparation or derivative thereof: Provided, that opium and preparations and derivatives thereof, other than smoking opium or opium prepared for smoking, may be imported for medicinal purposes only, under regulations which the Secretary of the Treasury is hereby authorized to prescribe, and when so imported shall be subject to the duties which are now or may hereafter be imposed by law.
'Sec. 2. That if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any opium or any preparation or derivative thereof contrary to law, or shall receive, conceal, buy, sell, or in any maner facilitate the transportation, concealment, or sale of such opium or preparation or derivative thereof after importation, knowing the same to have been imported contrary to law, such opium or preparation or derivative thereof shall be forfeited and shall be destroyed, and the offender shall be fined in any sum not exceeding $5,000 nor less than $50 or by imprisonment for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have, or to have had, possession of such opium or preparation or derivative thereof, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury.
'Sec. 3. That on and after July first, nineteen hundred and thirteen, all smoking opium or opium prepared for smoking found within the United States shall be presumed to have been imported after the first day of April, nineteen hundred and nine, and the burden of proof shall be on the claimant or the accused to rebut such presumption.'

Under those laws the plaintiffs in error were indicted in the court below--the indictment containing two counts. The first count charged in substance that within the jurisdiction of the court below, and on the 29th day of January, 1914, they and one Yik Fat willfully, unlawfully, and feloniously conspired and agreed together, and with divers other persons to the grand jurors unknown, to willfully, unlawfully, and knowingly import, and assist in so doing, from some foreign port or place to the grand jurors unknown, seven skins or bladders containing 14 pounds of opium prepared for smoking purposes, contrary to law; that the said conspiracy continued in existence to and including the commission of the overt acts alleged, and that in furtherance of the said conspiracy, and to effect and accomplish the object thereof, the said Li Cheung and Yik Fat, on or about the 30th day of January, 1914, brought into the port of San Francisco, in the state and Northern district of California, from some foreign port or place to the grand jurors unknown, seven skins or bladders containing 14 pounds of opium prepared for smoking purposes, contrary to law; that in further furtherance of the said conspiracy, and to effect and accomplish its object, the said Li Cheung and Yik Fat on the same day, to wit, January 30, 1914, on the steamship China, then and there lying and being in the port of San Francisco, prepared seven skins or bladders containing 14 pounds of opium prepared for smoking purposes, which said opium had theretofore been brought into the United States from some foreign port or place to the grand jurors unknown, for the purpose of causing the same to be delivered to the said Jung Quey, alias Sam Kee; that in further furtherance of the said conspiracy, and to effect and accomplish its object, the said Li Cheung and Yik Fat on the same day, to wit, January 30, 1914, on the said steamship China, then and there lying and being in the port of San Francisco, then and there delivered seven skins or bladders containing 14 pounds of opium prepared for smoking purposes, to one H. Matthaei, a quartermaster on said steamship China, for the purpose of having the said opium delivered to the said Jung Quey, alias Sam Kee; that in further furtherance of the said conspiracy, and to effect and accomplish its object, the said Mon Hing and Jt Yee, on the 31st day of January, 1914, at the city and county of San Francisco, in the state and Northern district of California, received seven skins or bladders containing 14 pounds of opium prepared for smoking purposes, which said opium had theretofore been brought into the United States from some foreign port or place to the grand jurors unknown, contrary to law, by the said Li Cheung and Yik Fat--against the peace and dignity of the United States, and contrary to the form of its statute in such case made and provided.

The second count charged in substance that the said Jung Quey alias Sam Kee, Li Cheung, Yik Fat, Mon Hing, and Jt Yee, on the 29th day of January, 1914, and within the jurisdiction of the court below, did willfully, unlawfully, and feloniously conspire together, and with divers other persons to the grand jurors unknown, to willfully, fraudulently, and knowingly receive and conceal seven skins or bladders containing 14 pounds of opium prepared for smoking purposes, which they then and there well knew had been imported into the United States contrary to law; that the said conspiracy was continued in force to and including the commission of each of the overt acts thereinafter alleged; that in furtherance of the said conspiracy, and to effect and accomplish its object, the said Li Cheung and Yik Fat, on or about the 30th day of January, 1914, brought into the port of San Francisco, in the state and Northern district of California, from some foreign port or place to the grand jurors unknown, seven skins or bladders containing 14 pounds of opium prepared for smoking purposes, contrary to law; that in further furtherance of the said conspiracy, and to effect and accomplish its object, the said Li Cheung and Yik Fat on the same day, to wit, January 30, 1914, on the steamship China, then and there lying and being in the port of San Francisco, in the state and Northern district of California, prepared seven skins or bladders containing 14 pounds of opium prepared for smoking purposes, which said opium had theretofore been brought into the United States from some foreign port or place to the grand jurors unknown, contrary to law, for the purpose of causing the same to be delivered to the said Jung Quey, alias Sam Kee; that in further furtherance of the said conspiracy, and to effect and accomplish its object, the said Li Cheung and Yik Fat on the same day, to...

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