Silverman v. United States, 2685.

• Decision Date: 27 June 1932
• Docket Number: No. 2685.,2685.
• Parties: SILVERMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

59 F.2d 636 (1932)

SILVERMAN v. UNITED STATES.

No. 2685.

Circuit Court of Appeals, First Circuit.

June 27, 1932.

William H. Lewis, of Boston, Mass. (Matthew L. McGrath, of Boston, Mass., on the brief), for appellant.

Elihu D. Stone, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

Two indictments were found against the appellant: One under section 1 of the Harrison Anti-Narcotic Act (26 USCA § 692), and the other under section 1 of the Jones-Miller Act (21 USCA § 174). The two indictments were consolidated at the trial under section 1024, R. S. (18 USCA § 557), and the appellant was found guilty under both indictments.

The first indictment alleged that the appellant on or about September 18, 1931, "did wilfully, knowingly and unlawfully sell, dispense and distribute to one Benjamin Fox of Boston a compound, manufacture, salt, derivative and preparation of opium, to wit, two ounces, more or less, of morphine, said morphine not being sold, dispensed and distributed in or from an original stamped package."

The second indictment alleged that the appellant "unlawfully, wilfully, fraudulently and knowingly received and concealed certain narcotic drugs, to wit, two ounces, more or less, of morphine, said morphine having been theretofore fraudulently and knowingly imported and brought into the United States at a time and place within said United States * * * she, the said Rebecca Silverman, at all the times aforesaid well knowing said morphine to have been so imported as aforesaid."

Numerous exceptions were taken to the rulings of the trial judge, which were preserved in seventeen assignments of error.

The first two assignments relate to the consolidation of the two indictments and denial of a motion to compel the government to elect on which indictments it would proceed. The charges in both indictments grew out of one transaction, and, apart from section 1024, R. S., the trial of the two indictments together was a matter within the discretion of the trial judge. There was clearly no abuse of this discretion in this case. Pointer v. United States, 151 U. S. 396, 14 S. Ct. 410, 38 L. Ed. 208; Wallace v. United States (C. C. A.) 243 F. 300; Lucas v. United States (C. C. A.) 275 F. 405.

Under the third assignment, counsel contends that the appellant was placed in double jeopardy by being tried on both indictments. The contention is without merit. Even the same act may constitute two separate offenses, especially if the offenses are created under separate statutes. The test laid down in numerous cases is whether an additional fact or facts must be proven in one case than in the other. Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489; Charley Toy et al. v. United States (C. C. A.) 266 F. 326; Vamvas v. United States (C. C. A.) 13 F.(2d) 347; Parmagini v. United States (C. C. A.) 42 F.(2d) 721, 724; Blockburger v. United States, 284 U. S. 299, 52 S. Ct. 180, 76 L. Ed. 306; Yee Hem v. United States, 268 U. S. 178, 45 S. Ct. 470, 69 L. Ed. 904; Copperthwaite v. United States (C. C. A.) 37 F.(2d) 846. Proof is required under the indictment for violation of section 1 of the Harrison Anti-Narcotic Act of a sale or distribution of opium, or its derivative salts, from unstamped packages; but, under the indictment for violation of section 1 of the Jones-Miller Act, only proof of the receipt and concealment of such narcotic drugs, knowing the same to have been unlawfully imported, is necessary. Obviously different facts must be proven under each indictment. That Congress has made possession of unstamped packages prima facie evidence of a sale and distribution from unstamped packages under the Harrison Anti-Narcotic Act, and also provided under the Jones-Miller Act that possession, unexplained, of such drug, in whatever form, shall be sufficient evidence of the receipt of such drug, knowing it was unlawfully imported, does not make the offenses charged in these indictments the same, nor, on conviction on both counts, involve the punishment of the respondent twice for the same act.

Under the first count, there was oral evidence of actual sale and distribution in unstamped packages, and the punishment under that count was not for having possession, but for the sale and distribution. Upon the issue of double punishment under these acts, the distinction between the act constituting the offense and evidence of the act must be kept in mind.

The fourth, fifth, sixth, seventh, and eighth assignments are without merit. The fourth relates to a statement made by counsel for the government in opening. It does not appear that the statement was necessarily improper, People v. Wong Hing, 176 Cal. 699. 703, 169 P. 357, or that any prejudice resulted therefrom. There was some evidence offered tending to sustain the statement, sufficient, at least, to rescue the charge from a deliberate attempt to prejudice the jury.

The record does not disclose that the alleged errors set forth in the fifth, sixth, seventh, and eighth assignments were prejudicial. Only the merest skeleton of the evidence objected to under these assignments is presented to this court. Unconnected with what went before or followed, it has little bearing that can be deemed prejudicial to the appellant.

The ninth assignment relates to the admission in evidence of the two packages seized and containing morphine. It was clearly admissible under the stipulated facts filed by the government supplementing the record.

The tenth and eleventh assignments relate to the admission of testimony in cross-examination as to the appellant's bank accounts, and the introduction by the government of the records of two banks showing her balances, withdrawals, and loans.

The appellant took the stand and gave an explanation of the transaction testified to by the officers, which was, in effect, a denial of the sale of any narcotic drug as alleged in the indictment, her explanation being that Fox had made an appointment to meet her to pay a debt which he had owed her for over a year for providing him with bail. It was in this manner she accounted for certain marked bills, found by the officers in her possession. In thus voluntarily offering herself as a witness, she exposed herself to cross-examination as to all matters connected with the sale of such drugs and to the impeachment of her credibility as a witness. Wilson v. United States, 232 U. S. 563, 569, 34 S. Ct. 347, 58 L. Ed. 728; DeWitt v. Skinner (C. C. A.) 232 F. 443; Owl Creek Coal Co. v. Goleb (C. C. A.) 232 F. 445.

After her implied denial of a sale of any such drug, and her explanation of the marked money found in her...