Pennacchio v. United States
| Citation | 263 F. 66 |
| Decision Date | 14 January 1920 |
| Docket Number | 115. |
| Parties | PENNACCHIO v. UNITED STATES. [1] |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Samuel Furstenburg, of New York City, for plaintiff in error.
Francis G. Caffey, U.S. Atty., of New York City (David V. Cahill, of New York City, of counsel), for the United States.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
Plaintiff in error has been indicted on four counts. The first count is for unlawfully, knowingly, and willfully selling, on December 1, 1918, to one Gillies, two tins of smoking opium when he had not registered with the collector of internal revenue as a person who deals in, dispenses, or sells opium or coca leaves; the second count charges such sale to Gillies as not in pursuance of any written order of the person to whom it was made, on the blank issued for that purpose; the third count alleges the sale to Gillies, on the 10th of January 1919, of four tins of smoking opium, and that the plaintiff in error, at the time of such sale, had not registered with the collector of internal revenue as a person who deals in dispenses, or sells opium or coca leaves; and the fourth count alleges that such sale on the 10th of January, 1919 was not made in pursuance of a written order to the person to whom it was made on blank form issued for that purpose by the Commissioner of Internal Revenue.
The plaintiff in error was convicted on the first three counts. After sentence, he sued out this writ of error. The assignments of error are very general and are as follows: (1) That the conviction was erroneous; (2) that the evidence of guilt was insufficient; (3) that evidence was improperly admitted; (4) that evidence was improperly excluded.
Under these assignments of error, the plaintiff in error contends that there is no evidence of a sale of opium. He contends that the witness Gillies, to whom the sale was made, could not testify that the contents of the tins sold to him were, in fact, opium, contending that it required expert testimony to establish this fact. It is true that, in order to establish the fact of the presence of alkaloid in opium, an analytical process must be followed, requiring the knowledge of the chemist to state positively that a substance is opium within the formula as defined in the United States Pharmacopoeia. Also, it is not contended by the government that Gillies was a chemist, or possessed of the knowledge or training such as would make him capable of discovering, after chemical analysis, the necessary ingredients to bring the substance examined within the definition of opium.
But the government rightly contends that, it being established that Gillies was a habitual user of opium, his testimony as to the nature of the substance with which he was familiar was sufficient to require the submission of the question of whether or not the substance was opium to the jury as a question of fact. His testimony was given without objection and he testified that he had been using the opium for about a year, and he was therefore familiar with it. However, a motion was subsequently made to strike out his testimony, which was denied. This was evidence as to a fact which the witness was competent to state, and its submission to the jury was therefore proper. The witness possessed greater knowledge than the jury as to the fact that it was opium, and...
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Cruz v. Berbary, 03-CV-0596 (VEB).
...upon prior experience, rolling the cigarette herself, seeing what it looked like, and the fact that it made her "high"); Pennacchio v. United States, 263 F. 66 (2d Cir.) (upholding admission of a habitual opium user's testimony that the substance given to him, and which he used, was in fact......
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Weaver v. United States
...without objection and without exception to the instruction. The instruction as a whole is a correct statement of the law. Pennacchio v. United States, 2 Cir., 263 F. 66. But, if there was error in admitting the testimony, the conviction can not be reversed on this account. Only one sentence......
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...in understanding an issue relating to that field. Empire Oil & Refining Co. v. Hoyt, 112 F.2d 356, 360 (CA6, 1940); Pennacchio v. United States, 263 F. 66 (CA2, 1920), Cert. den., 253 U.S. 497, 40 S.Ct. 588, 64 L.Ed. 1031 (1920). Witnesses are especially helpful where they possess greater k......
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