Rosenberg v. United States

• Decision Date: 07 June 1926
• Docket Number: No. 4824.,4824.
• Citation: 13 F.2d 369
• Parties: ROSENBERG et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

13 F.2d 369 (1926)

ROSENBERG et al. v. UNITED STATES.

No. 4824.

Circuit Court of Appeals, Ninth Circuit.

June 7, 1926.

William F. Herron, of San Francisco, Cal., for plaintiffs in error.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge.

Defendants were convicted under two counts of an indictment which charged, in count 1, that "on or about November 3, 1925, in the city and county of San Francisco, in the Northern district of California, they did * * * violate a requirement of the Act of December 17, 1914, as amended February 24, 1919 40 Stat. 1057, in that they did then and there knowingly * * * and feloniously purchase, sell, dispense, and distribute a certain derivative of opium, to wit, * * * morphine, * * * which said morphine was not then and there in or from the original stamped packages containing said morphine," and, in count 2, that on or about the same date, and at the same place, they "violated a requirement of the Act of February 9, 1909, as amended January 17, 1914, as amended May 26, 1922 42 Stat. 596, in that they then and there willfully, * * * knowingly, and feloniously did receive, conceal, buy, sell, and facilitate the transportation, and concealment after importation, of a certain derivative of opium, to wit, two packages, * * * which said morphine defendants then and there well knew had been imported into the United States contrary to law." Each was sentenced to 10 years' imprisonment and to pay a fine of $1,000.

On the face of the record the sentence was in excess of what might have been imposed under the first count; but as the same evidence was introduced in support of the two counts, and the punishment was such as could have been imposed under the second count, if that count is good, and there is sufficient to sustain the judgment under it, defendants were not prejudiced. Powers v. United States, 223 U. S. 303, 32 S. Ct. 281, 56 L. Ed. 448. The assignments are limited, therefore, to the question of the sufficiency of the second count, and of the evidence to support the verdict under that count.

That a charge as stated in count 2 is sufficient is held by this court in Wong Lung Sing v. United States (C. C. A.) 3 F.(2d) 780, and Lee Tung v. United States (C. C. A.) 7 F.(2d) 111.

The constitutionality of the Narcotic Drugs Import and Export Act is questioned, on the ground that its provisions compel one accused to be a witness against himself. The statute (42 Stat. 596, § 2, subd. f) merely establishes a rule of evidence, by providing that, when the defendant on trial for violation of the provisions of section 2, subd. (c), of the act, is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless defendant explains the possession to the satisfaction of the jury. This in effect is the creation of a presumption, subject, always, to be rebutted. In no way is there compulsion that defendant shall testify. He may produce witnesses who may truthfully and without...