Miller v. United States

• Decision Date: 04 April 1923
• Docket Number: 4011.
• Citation: 288 F. 816
• Parties: MILLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F. 816

MILLER v. UNITED STATES.

No. 4011.

United States Court of Appeals, Fifth Circuit.

April 4, 1923

W. H Powell, of Canton, Miss. and S.D. Redmond, of Jackson, Miss (R. H. powell, of Canton, Miss., on the brief), for plaintiff in error.

E. E Hindman, U.S. Atty., and Chalmers Potter, Asst. U.S. Atty both of Jackson, Miss.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

The plaintiff in error (hereinafter called defendant) was indicted in the United States District Court for the Southern District of Mississippi, Jackson Division, for alleged violations of the Harrison Narcotic Act (Comp. St. Secs. 6287g-6287q). The indictment contained seven counts. All of the counts except the fourth charged defendant with unlawfully selling, bartering, dispensing, exchanging, distributing, administering, or giving away a certain quantity of morphine, on a given date. Some of these counts charged the defendant with being a person required to be registered by said act and with not having registered. Others did not so allege.

None of these counts alleged any person to whom the sale was made, nor is there any averment as to place, except that the sale was made within said district and division. The fourth count charged the defendant with unlawfully having in his possession and under his control on July 6, 1922, in the Jackson division of the Southern district of Mississippi, a quantity of morphine, being a derivative of opium, defendant not having registered and being a person required to register.

Defendant demurred to each count of the indictment severally on the grounds that said count (1) charged no crime against him; (2) that the allegations thereof were wholly insufficient in law; (3) that the same does not state the time and place, to whom, and the manner and circumstance under which the alleged acts were committed, sufficiently to put him on notice of the crime charged. The court overruled said demurrer, and the defendant was convicted and sentenced on each count of the indictment.

1. We think as to each count of said indictment except the fourth the demurrer should have been sustained on the third ground above stated. No person is alleged in these counts to whom it is charged that Miller sold, dispensed, or gave away any morphine, nor is it even alleged that it was sold, etc., to persons unknown. Nothing is charged which would have identified the sale intended to be here charged, as between several sales committed on the same date. These counts were challenged by a timely demurrer, which should have been sustained.

It is not sufficient to charge an offense solely in the language of the statute, unless such charge makes such statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. United States v. Hess, 124 U.S. 483, 487, 8 Sup.Ct. 571, 31 L.Ed. 516; Larkin v. United States, 107 F. 697, 699, 46 C.C.A. 588; Fehringer v. People, 59 Colo. 3, 147 P. 361, 362. As to the fourth count, that was sufficient. It fully charges an unlawful possession of morphine, giving the time and place of such unlawful possession, by one not registered who was a person required to register. United States v. Jin Fuey Moy, 241 U.S. 394, 36 Sup.Ct. 658, 60 L.Ed. 1061, Ann. Cas. 1917D, 854.

2. The defendant moved for a continuance on the ground of the illness of S.D. Redmond, one of the defendant's counsel. This motion was overruled, and this is assigned as error. A motion for a continuance is addressed largely to the discretion of the court, and this discretion will not be overruled, unless abused....