Stetson v. United States

• Decision Date: 13 May 1919
• Docket Number: 3217.
• Citation: 257 F. 689
• Parties: STETSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

257 F. 689

STETSON v. UNITED STATES.

No. 3217.

United States Court of Appeals, Sixth Circuit.

May 13, 1919

Frans E. Lindquist, of Kansas City, Mo., for plaintiff in error.

Frederic L. Eaton, Asst. U.S. Atty., of Detroit, Mich.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Stetson was indicted for violating the Harrison Narcotic Drug Act (U.S. Comp. St. 1916, Sec. 6287g et seq.). The indictment contained two counts. The first charged him with engaging in carrying on the business of dealing in and selling morphine by selling and dispensing the same to persons unknown without having registered with or paid the special tax to the collector of internal revenue, as required by section 1 of the act. The second count charged him with a violation of section 8, in having morphine in his possession for purposes of sale without having registered or paid the special tax. Under his plea of not guilty he was tried convicted, and sentenced. He challenges the constitutionality of both sections 1 and 8 of the act, and the sufficiency of each count in the indictment.

1. The recent decisions of the Supreme Court of the United States in United States v. Doremus, 249 U.S. 86, 39 Sup.Ct. 214, 63 L.Ed. . . ., in which petition for rehearing has been denied, and Webb & Goldbaum v. United States, 249 U.S. 96, 39 Sup.Ct. 217, 63 L.Ed. . . ., foreclose the question of the constitutionality of section 1. While those decisions directly relate to section 2, it follows, from the sustaining of the act as a revenue measure, that the validity of the administrative provisions of section 1, relating to taxation and registration, is unassailable.

2. Section 1 contains a proviso exempting from the requirements of registration and payment of tax 'officers of the United States government who are lawfully engaged in making purchases of the above-named drugs for the various departments of the Army and Navy, the public health service, and for government hospitals and prisons, and officers of any state government, or of any county or municipality therein, who are lawfully engaged in making purchases of the above-named drugs for state, county, or municipal hospitals or prisons, and officials of any territory or insular possession, or the District of Columbia, or of the United States, who are lawfully engaged in making purchases of the above-named drugs for hospitals or prisons therein.'

Stetson is described in the indictment as 'not being then and there an officer of the federal government or state government engaged in making purchases of the above-named drug, and not being then and there any other officer entitled to make purchases of said narcotic drugs. ' The indictment is criticized as failing to negative all the statutory exceptions. We think this criticism without merit. The statute does not except all officers of counties or municipalities, nor all officials of any territory or insular possessions, but only such as are lawfully engaged in making purchases of the drugs in question for hospitals and prisons. We think the negative contained in the indictment, while more general, is even broader than the statute. Defendant cannot complain that the exception is made to cover more than it need to. It does not affect his substantial rights, nor tend to his prejudice. An indictment is sufficiently certain if it fairly inform the accused of the crime intended to be charged so as to enable him to prepare for his defense, and so as to make the judgment a complete defense to a second prosecution for the same offense. United States v. Hess, 124 U.S. 483, 8 Sup.Ct. 571, 31 L.Ed. 516; Tyomies Pub. Co. v. United States (C.C.A. 6) 211 F. 385, 389, 128 C.C.A. 47; Daniels v. United States (C.C.A. 6) 196 F. 459, 465, 116 C.C.A. 2339

In our opinion, the indictment, so far as the question we are considering is concerned, responds to this test.

3. Section 6 of the Harrison Act (Comp. St. Sec. 6287l) declares that its provisions 'shall not be construed to apply to the sale, distribution, giving away, dispensing, or possession of preparations and remedies which do not contain more than * * * one-fourth of a grain of morphine; * * * Provided that such remedies are sold, distributed, given away, dispensed, or possessed as medicines, and not for the purpose of evading the intentions and provisions of this act.'

The criticism that the first count of the indictment is bad, because not negativing this exception, does not impress us as meritorious. The general rule is that an exception in the enacting clause must be negatived by the pleader, but that an exception in a later section of the statute need not be negatived. United States v. Cook, 17 Wall. 168, 21 L.Ed. 538; Ledbetter v. United States, 170 U.S. 606, 611, 18 Sup.Ct. 774, 42 L.Ed. 1162; Shelp v. United States (C.C.A. 9) 81 F. 694, 696, 26 C.C.A. 570; Breitmayer v. United States (C.C.A. 6) 249 F. 929, 934, 162 C.C.A. 127.

In United States v. Cook, supra, it is said, somewhat obiter (17 Wall. 176, 21 L.Ed. 538), that although the exception is not in the enacting clause, yet if it is so incorporated with that clause 'that it becomes in fact a part of the description, then it cannot be omitted in the pleading, but if it is not so incorporated with the clause defining the offense as to become a material part of the definition of the offense, then it is matter of defense and must be shown by the other party, though it be in the same section or even in a succeeding sentence. ' It is also the rule that a description of a statutory offense in the language of the statute is sufficient, provided the language used, according to its natural import, fully describes the offense. Potter v. United States, 155 U.S. 438, 444, 15 Sup.Ct. 144, 39 L.Ed. 214. In our opinion the first section of the act fully defines the substantive offense with which defendant is charged. That section makes it unlawful for any...