Shepard v. United States
Decision Date | 04 October 1916 |
Docket Number | 2669. |
Citation | 236 F. 73 |
Parties | SHEPARD v. UNITED STATES. |
Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted]
Indictment under section 37 of the federal Penal Code(Act of March 4 1909;35 Stat.pt. 1, pp. 1088, 1096), charging F. M. Shepard and A. C. Brown with the crime of conspiracy to import into the United States from Mexico 80 cans of smoking opium, and to receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale of such opium, in violation of the act of January 17, 1914(38 Stat.pt. 1, p 275).Judgment upon a verdict of guilty against each of the defendants.Frederick M. Shepard, one of the defendants, sues out the present writ of error.
In July, 1914, plaintiff in error was retained as attorney at law to represent and to obtain bail for certain persons who were lodged in the county jail in Los Angeles, charged with the crime of conspiracy to import opium into the United States from Mexico in violation of the laws of the United States.One A. C. Brown was also employed by the same persons for the purpose of obtaining such bail.In connection with their efforts to secure bail, and at the instance of their clients, plaintiff in error and Brown proceeded to Tia Juana, just over the boundary line in the republic of Mexico, where they found 40 five-tael cans of smoking opium which had been concealed by their clients.This opium Brown proceeded to dispose of in Tia Juana for either $32 or $34 per can, making a total sum of either $1,280 or $1,360, and, after deducting his proportion of the proceeds in accordance with a previous understanding with their clients, Brown delivered the balance of $1,000 to plaintiff in error.
A second lot of 53 or 54 cans, concealed in the same vicinity, was searched for, but not found by the plaintiff in error.It appears, however, that a quantity of opium was found in that neighborhood by the defendant Brown and sold.
A third lot was found by the plaintiff in error and the defendant Brown, concealed near Jacumba, in Mexico, about 76 miles east of San Diego, near the boundary line.The defendant Brown subsequently brought this lot to or near Los Angeles, in California, where it was concealed for a time.
Plaintiff in error and Brown were thereafter jointly indicted under section 37 of the federal Penal Code for conspiracy to import into the United States from the republic of Mexico this last-mentioned lot of 80 cans of smoking opium, and to receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale of such opium, in violation of the act of January 17, 1914.It is charged as overt acts in the furtherance of the conspiracy that the plaintiff in error and the defendant Brown went from San Diego to Jacumba, Mexico, and that the defendant Brown brought the 80 cans of smoking opium from Jacumba, Mexico, to a point near Los Angeles, Cal.To this indictment defendants Shepard and Brown interposed their several demurrers, which were overruled by the court.On the trial of the case, the jury returned a verdict of guilty as against each of the defendants.Defendant Shepard thereafter moved for a new trial upon certain grounds specified in the motion, and moved in arrest of judgment upon the ground that the act of January 17, 1914, is unconstitutional and void, both of which motions were denied by the court and the defendants each sentenced to imprisonment for the term of one year.Defendant Shepard thereafter sued out the present writ of error.
Charles J. Kelly and S. M. Johnstone, both of Los Angeles, Cal., for plaintiff in error.
Albert Schoonover, U.S. Atty., of Los Angeles, Cal., M. G. Gallaher, Asst. U.S. atty., of Fresno, Cal., and J. Robert O'Connor, Asst. U.S. Atty., of Los Angeles, Cal.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
MORROW Circuit Judge(after stating the facts as above).
1.The indictment in this case contains but one count.The errors assigned relate to the overruling of a demurrer to the indictment, the giving of certain instructions to the jury, the refusal of the court to give certain instructions requested by the defendant, the denial of the motion of defendant for a new trial, and the denial of a motion in arrest of judgment.
Section 37 of the Penal Code of the United States (Act ofMarch 4, 1909, c. 321;35 Stat. 1088, 1096) provides:
'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars or imprisoned not more than two years, or both.'
Section 1 of the act of January 17, 1914, c. 9 (38 Stat. 275, 276) provides:
'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, that opium and preparations and derivatives thereof, other than smoking opium or opium prepared for smoking, may be imported for medicinal purposes only, under regulations which the Secretary of the Treasury is hereby authorized to prescribe, and when so imported shall be subject to the duties which are now or may hereafter be imposed by law.'
Section 2 of the same act provides:
Section 3 provides:
'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 motion in arrest of judgment is based upon the objection that the last-named act is unconstitutional in so far as it attempts to make penal the keeping and transportation of opium within the limits of a state, being in conflict with the police power of the state and not within the powers delegated to the United States.In Brolan v. United States,236 U.S. 216, 222, 35 Sup.Ct. 285, 59 L.Ed. 544, this objection to the statute was held by the Supreme Court to be so utterly devoid of merit as to be frivolous.
2.The denial of a motion for a new trial in the federal courts is within the discretion of the court, and where that discretion has been exercised and there is evidence to support the verdict, as in this case, the motion is not reviewable on a writ of error.This has been held so often that we are surprised that the denial of the motion continues to be presented as a ground for the reversal of a judgment.Dwyer v. United States,170 F. 160, 165, 95 C.C.A. 416;Hedderly v. United States,193 F. 561, 571, 114 C.C.A. 227;Pickett v. United States,216 U.S. 456, 461, 30 Sup.Ct. 265, 54 L.Ed. 566;Holmgren v. United States,217 U.S. 509, 521, 30 Sup.Ct. 588, 54 L.Ed. 861, 19 Ann.Cas. 778.
3.The demurrer to the indictment interposed by the plaintiff in error was for uncertainty in charging the offense which it is alleged the defendants conspired to commit.Section 2 of the act of January 17, 1914, upon which this indictment is based, provides:
'That if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any opium * * * contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such opium * * * after importation, knowing the same to have been imported contrary to law,' etc.
The indictment charges that the defendants conspired to commit an offense against the United States, to wit:
'The offense of fraudulently and knowingly importing and bringing into the United States, and assisting in so doing, from a foreign country, to wit, the republic of Mexico, opium prepared for smoking, and to receive, conceal, buy, sell and facilitate the transportation, concealment and sale of such opium prepared for smoking, knowing the same to have been imported contrary to law, which said offense is defined by the Act of January 17, 1914.'
The indictment does not follow the letter of the statute, but omits the words, 'after importation,' preceding the words, 'knowing the same to have been imported contrary to law.'It is argued that this omission is material and important, particularly in this case, where it is admitted that the plaintiff in error and the defendant Brown were engaged in dealing in opium in Mexico in a manner substantially in the words of the statute; that instead of omitting these words from the indictment, the words of the statute should have been amplified so that it should have been distinctly charged (if such was the purpose of the indictment) that the offense which the...
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