Ng Choy Fong v. United States

• Decision Date: 01 October 1917
• Docket Number: 2864.
• Citation: 245 F. 305
• Parties: NG CHOY FONG v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

245 F. 305

NG CHOY FONG v. UNITED STATES.

No. 2864.

United States Court of Appeals, Ninth Circuit.

October 1, 1917

George J. Hatfield, of San Francisco, Cal., for plaintiff in error.

John W Preston, U.S. Atty., and M. A. Thomas, Asst. U.S. Atty., both of San Francisco, Cal.

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

HUNT Circuit Judge.

Plaintiff in error, a Chinese woman, was convicted of violation of the act of Congress of February 9, 1909, as amended January 17, 1914, in having on August 12, 1915 concealed and facilitated the transportation and concealment of 660 five-tael cans of opium prepared for smoking purposes which she well knew had been imported into the United States contrary to law. Under the writ of error she assails the constitutionality of the portions of sections 2 and 3 of the act of February 9, 1909, which provide that on and after July 1, 1913, all smoking opium found within the United States shall be presumed to have been imported after April 1, 1909, and that possession of such opium shall be deemed sufficient evidence to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury. We quote the material parts of the sections:

'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,' etc.

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 manner 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' punished, as provided. '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.'

The position taken is that the provisions referred to are in conflict with article 5 of the Amendments to the Constitution, in that they take away from a defendant the protection of the presumption of innocence, and that they 'tend to compel the defendant to take the witness stand,' whether or not she wishes to, at the peril of being convicted of a crime not proved against her. The question is presented by objection to the following instructions given by the lower court to the jury:

'These provisions are made a part of the law because of the difficulty of proving guilty knowledge, and render it necessary only that the government prove that the defendants had, after July 1, 1913, smoking opium in their possession, when the presumption at once arises that it had been imported after April 1, 1909, and such possession imputes to the defendants a guilty knowledge sufficient to warrant a conviction unless the defendants shall explain such possession to your satisfaction. If, therefore, you are satisfied from the evidence beyond a reasonable doubt that defendants did have possession of this opium, and that it was smoking opium, then such possession will be sufficient to warrant a conviction, unless the defendants have explained such possession to your satisfaction.'

Examination of section 1 of the act above quoted (Comp. St. 1916, Sec 8800) shows that it is a general prohibition against importing opium after April 1, 1909, except for use in certain purposes not here relevant. Section 2 is a declaration that it is unlawful for any person to conceal or facilitate the concealment of opium which has been unlawfully imported,...