O'NEILL v. United States, 7118.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: LEWIS and BOOTH, Circuit , and PHILLIPS
• Citation: 19 F.2d 322
• Parties: O'NEILL v. UNITED STATES.
• Docket Number: No. 7118.,7118.
• Decision Date: 22 April 1927

19 F.2d 322 (1927)

O'NEILL
v.
UNITED STATES.

No. 7118.

Circuit Court of Appeals, Eighth Circuit.

April 22, 1927.

19 F.2d 323

E. D. O'Sullivan, of Omaha, Neb. (W. N. Jamieson and C. J. Southard, both of Omaha, Neb., on the brief), for plaintiff in error.

James C. Kinsler, U. S. Atty., of Omaha, Neb. (Ambrose C. Epperson and Andrew C. Scott, Asst. U. S. Attys., both of Omaha, Neb., William J. Froelich, Asst. U. S. Atty., of O'Neill, Neb., and George A. Keyser, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

Frank O'Neill was indicted, tried, convicted, and sentenced for a violation of section 1 of the Harrison Anti-Narcotic Act. Act Dec. 17, 1914 (38 Stat. 785), amended February 24, 1919 (40 Stat. 1130), re-enacted November 23, 1921 (42 Stat. 298), and re-enacted June 2, 1924 (43 Stat. 328 Comp. St. § 6287g). The conviction was upon the first count of the indictment. The charging part of this count reads as follows:

"That Sam House, Pat Burkrey and Frank O'Neill, late of the district of Nebraska, heretofore, to wit, on or about the twenty fifth day of July, in the year nineteen hundred and twenty four, at Omaha, in the county of Douglas, in the Omaha division of the district of Nebraska, circuit aforesaid, and within the jurisdiction of this court then and there being, being then and there persons required under the provisions of the act of Congress of the United States of America of December 17, 1914, known as the Harrison Anti-Narcotic Act 38 Stat. 785, as amended by the act of Congress of the United States of America approved February 24, 1919, and known as the Revenue Act of 1918, 40 Stat. 1057, to register with the collector of internal revenue for the district of Nebraska, and to pay the special tax as therein required, that is to say, the said defendants being then and there persons who dealt in, sold and dispensed narcotic drugs, and they, the said defendants, Sam House, Pat Burkrey and Frank O'Neill not having so registered and paid said special tax, did then and there unlawfully, willfully, knowingly and feloniously sell and dispense to one Richie Feinberg certain narcotic drugs, to wit, about three ounces of morphine, a derivative of opium."

The material facts are these:

One Richie Feinberg was employed by the narcotic agents as an informer. Feinberg was an addict. He testified that on July 25, 1924, at Omaha, Frank O'Neill agreed to sell him three ounces of morphine for $200; that shortly after such agreement, they went to the Carlton Hotel; that he there paid O'Neill the sum of $200 in currency; that they then went to the Rent-a-Ford Garage, where O'Neill rented a Ford car; that from there they drove to a point near the gas plant in Omaha; that O'Neill left Feinberg at a corner near the gas plant; that O'Neill returned in about 15 minutes; that Feinberg again got into the car with O'Neill; and that thereupon O'Neill delivered to him the three ounces of morphine. This testimony of Feinberg was corroborated in certain particulars by the testimony of the narcotic agents. O'Neill was arrested on July 31, 1924. He was taken to the office of the narcotic agents in the Federal Building at Omaha, Neb., and was there questioned by Narcotic Agent Manning and Narcotic Inspectors Matthews, Carroll, and Hesse. Agent Manning undertook to make a summary or digest of the statements made by O'Neill in response to the questioning of the officers. This summary or digest was

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offered and received in evidence over the objection of counsel for O'Neill. The testimony showed that the morphine purchased by Feinberg was neither in an original stamped package nor from an original stamped package

O'Neill and his codefendants demurred to the first count of the indictment, on the following grounds:

First, that it failed to allege the exact date of the sale, the time of day when the sale was made, the exact place where the sale was made, and the price paid;

Second, that it was vague and indefinite, and did not allege sufficient facts and circumstances to identify the particular offense sought to be charged;

Third, that it was duplicitous, in that it charged the sale and also the dispensing of narcotic drugs.

The demurrer was overruled and this ruling is assigned as error.

It will be noted that count 1 of the indictment charges that O'Neill, on or about July 25, 1924, at Omaha, was a person who dealt in, sold and dispensed narcotic drugs, and was a person required to register under the provisions of the act and pay the special tax therein required, and that at such time and place O'Neill, not having so registered and paid the special tax, did sell and dispense to Feinberg certain narcotic drugs, to wit, three ounces of morphine.

The crime sought to be charged is a violation of the first penal provision of section 1 of the Harrison Anti-Narcotic Act. The statute describes and defines all the elements of the offense. Count 1 charges the offense substantially in the language of the statute. No general or common-law terms are employed. The indictment therefore meets the requirements of the general rule for charging a statutory crime. Ackley v. U. S. (C. C. A. 8) 200 F. 217, 221; Rupert v. U. S. (C. C. A. 8) 181 F. 87, 90; Hardesty v. U. S. (C. C. A. 6) 168 F. 25, 28, 29; Jelke v. U. S. (C. C. A. 7) 255 F. 264, 274, 275; Newton Tea & Spice Co. v. U. S. (C. C. A. 6) 288 F. 475, 478. The particular kind of narcotics sold, the amount thereof, and the name of the purchaser are alleged. These allegations sufficiently earmark and identify the particular offense. Count 1 charged the essential elements of the offense with sufficient certainty to enable O'Neill to prepare his defense, and after judgment to plead the record and judgment in bar of a further prosecution for the same offense.

Count 1 is not duplicitous. Where a statute denounces several things as a crime and connects them with the disjunctive "or," the pleader, in drawing an indictment, should connect them by the conjunctive "and." An indictment so drawn is not bad for duplicity, and where the testimony establishes the guilt of the defendant as to any one of the things charged conviction may follow. Ackley v. U. S., supra; Shepard v. U. S. (C. C. A. 9) 236 F. 73, 82; Simpson v. U. S. (C. C. A. 9) 229 F. 940, 942, 943; Rowan v. U. S. (C. C. A. 5) 281 F. 137, 138, 139; Jacobsen v. U. S. (C. C. A. 7) 272 F. 399; Crain v. U. S., 162 U. S. 625, 634, 635, 636, 16 S. Ct. 952, 40 L. Ed. 1097.

We conclude that count 1 of the indictment was sufficient and that the demurrer was properly overruled.

The defendant also filed a motion for a bill of particulars. This motion was denied, and the ruling is assigned as error. By this motion O'Neill sought an order requiring the government to state the exact date of the sale, the exact time of day of the sale, the exact place of the sale, which defendants were present at the sale, who delivered the drugs, the amount of money paid, who paid the money, who furnished the money to the purchaser, what kind of container the morphine was in, the markings on the container, the copy of the label on the package, whether Feinberg was an informer, any evidence the government relied on to prove O'Neill was a person who dealt in narcotic drugs, any prior sales which the government relied on, and who was present when such sales were made.

Where an indictment sets forth the facts constituting the essential elements of the offense with such certainty that it cannot be pronounced bad on motion to quash or demurrer, and yet is couched in such language that the accused is liable to be surprised by the production of evidence for which he is unprepared, his remedy is a bill of particulars. Billingsley v. U. S. (C. C. A. 8) 16 F.(2d) 754. The allowance or refusal of an application for a bill of particulars rests in the sound discretion of the trial court. Wong Tai v. U. S. (opinion filed January 3, 1927) 47 S. Ct. 300, 71 L. Ed. ___; Billingsley v. U. S., supra. We cannot upon an examination of the record in this case, say that the court abused its discretion in denying the motion for a bill of particulars. The record does not indicate that O'Neill was taken by surprise in the progress of the trial, or that his substantial rights were in

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any wise prejudiced by the denial of the motion. Wong Tai v. U. S., supra; Connors v. U. S., 158 U. S. 408, 411, 15 S. Ct. 951, 39 L. Ed. 1033; Armour Packing Co. v. U. S., 209 U. S. 56, 84, 28 S. Ct. 428, 52 L. Ed. 681; New York Central R. R. v. U. S., 212 U. S. 481, 497, 29 S. Ct. 304, 53 L. Ed. 613

The introduction in evidence of the summary, which Manning prepared, of the statements given by O'Neill, is also assigned as error. Statements and declarations by an accused, from which, in connection with other evidence of surrounding circumstances, an inference of...