Marks v. United States

• Decision Date: 08 April 1912
• Docket Number: 200.
• Citation: Marks v. United States, 196 F. 476 (2nd Cir. 1912)
• Parties: MARKS v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

196 F. 476

MARKS v. UNITED STATES.

No. 200.

United States Court of Appeals, Second Circuit.

April 8, 1912

Houghton & Marx(Louis Jersawitz, of counsel), for plaintiff in error.

Henry A. Wise, U.S. Atty., and J. Neville Boyle, Asst. U.S. Atty.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

NOYES Circuit Judge(after stating the facts as above).

The indictment charges violations of the Act of 1890 relating to the manufacture of smoking opium.The first count avers that the defendant engaged in such manufacture without giving the required bond.The second alleges that he did so without paying the required tax.The third charges that he did so without obeying the regulations governing the conduct of the business.

Assuming that the process through which the defendant put the opium amounted to 'manufacture' within the statute, it is clear that the evidence warranted the jury in finding the defendant guilty of its violation.He did not give any bond pay any tax, or obey any of the regulations for the conduct of the business of manufacturing smoking opium.The testimony showed that both crude opium and smoking opium were found upon his premises.An opium smoking outfit was also found and the various receptacles in which it is the custom to retail smoking opium.Apparatus for heating opium was also found and utensils for treating it.The jury may well have determined that the so-called 'opicurine' was merely diluted smoking opium.

The first question, then, is whether the acts of the defendant in converting the crude opium product into the smoking opium did amount to its manufacture within the meaning of the act.

The purpose of the statute is to tax and regulate the manufacture of smoking opium and it applies, manifestly, to any process by which the crude opium is converted into a product fit for smoking.Any such process constitutes manufacture within such a limited statute even if it might not amount to manufacture under a statute of general application.The contrary is the equivalent of saying that the manufacture of smoking opium cannot be regulated because it is not a manufactured product.If there had been a statute in the Anheuser-Busch Case, 207 U.S. 556, 28 Sup.Ct. 204, 52 L.Ed. 336, specifically allowing drawbacks in the case of manufactured bottle corks, it is by no means certain that, within the meaning of such a statute the process there described would not have been held to amount to manufacture.Moreover, while in that case it was properly said that the cork after the process was still a cork, it is apparent here that the dry and hard crude opium product was substantially transformed in its nature by the heating and other treatment which it received before it became the molasses-like substance fit for smoking.We are of the opinion that the process of the defendant amounted to manufacture within the statute in question.

But the defendant contends that this conclusion does not end the case and urges that the statute under which the indictment is framed is not in force; that is to say, he claims that the Act of 1890 was repealed in whole or...