Stokes v. United States

• Decision Date: 26 February 1930
• Docket Number: No. 8631.,8631.
• Citation: 39 F.2d 440
• Parties: STOKES v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

39 F.2d 440 (1930)

STOKES v. UNITED STATES.

No. 8631.

Circuit Court of Appeals, Eighth Circuit.

February 26, 1930.

Robert L. Spelbrink, of St. Louis, Mo., for appellant.

Arthur A. Hapke, Asst. U. S. Atty., of St. Louis, Mo. (L. H. Breuer, U. S. Atty., of Rolla, Mo., on the brief), for the United States.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and DEWEY, District Judge.

DEWEY, District Judge.

Shedrick Stokes, appellant, was indicted upon two counts, each charging a violation of the Harrison Narcotic Act (26 USCA §§ 211, 692, 696). He was tried, and a verdict rendered against him, and sentenced on each of said counts for a term of five years, to run concurrently.

The only question urged on appeal is as to the sufficiency of either of said counts in the indictment.

The defendant demurred to the indictment before the commencement of the trial. In this demurrer the defendant claims that the indictment does not charge the defendant with the violation of any law of the United States; that it is indefinite and uncertain; that neither of the counts state facts sufficient to constitute a crime under the laws of the United States because the counts in the indictment embody and contain therein several different sections of the law of the United States covering the Harrison Narcotic Act.

The charging part of the indictment is as follows:

"Count One. That on or about the 24th day of May, A. D., 1928, at or near 2311-a Franklin Avenue, in the City of St. Louis, in the State of Missouri, within the Division and District aforesaid, and within the jurisdiction of the Court aforesaid, and within the First Internal Revenue District of Missouri, Shedrick Stokes alias Mush Mouth, being then and there a person who had not paid to the Collector of Internal Revenue, within and for the First Internal Revenue District of Missouri, the special tax required by law of every person who deals in, dispenses, sells, distributes, manufactures, produces, imports, or gives away opium or coca leaves, their salts, (derivatives), or preparations, did unlawfully, wilfully and feloniously sell and give away to one Flora Bogy, a certain derivative of opium, to-wit: one ounce, more or less, of morphine hydrochloride, the exact amount being to the Grand Jurors unknown, and a certain derivative of coca leaves, to-wit: two grains, more or less, of cocaine hydrochloride, the exact amount being to the Grand Jurors unknown, at and for the price and sum of Sixty-seven Dollars, said sale and giving away having been made not in pursuance of a written order of the person to whom the said morphine hydrochloride was sold and given away, on a form issued in blank for that purpose by the Commissioner of Internal Revenue.

"Count Two. That on or about the 24th day of May A. D. 1928, at or near 2311-a Franklin Avenue, in the city of St. Louis, in the State of Missouri, within the jurisdiction of the Court aforesaid, and within the First Internal Revenue District of Missouri, Shedrick Stokes, alias Mush Mouth, did wilfully, unlawfully, and feloniously sell and dispense to one Flora Bogy, a certain derivative of opium, to-wit: one ounce, more or less, of morphine hydrochloride, the exact amount being to the Grand Jurors unknown, and a certain derivative of coca leaves, to-wit: two grains, more or less, of cocaine hydrochloride, the exact amount being to the Grand Jurors unknown, at and for the price and sum of Sixty-seven Dollars, and which said morphine hydrochloride and said cocaine hydrochloride then and there so sold and dispensed by the said Shedrick Stokes alias Mush Mouth to the said Flora Bogy was not so sold and dispensed in the original stamped packages, nor from the original stamped packages."

The provisions of the Harrison Narcotic Law have been the subject of interpretation by this court in a great number of cases. In order to answer appellant's contention, it is necessary to analyze the elements of the offenses under sections 1 and 2 of the act.

This analysis of section 1 is carefully set out by Judge Booth in the case of Butler v. United States (C. C. A.) 20 F.(2d) 570, 572, as follows:

"Section 1 * * * covers two separate and distinct classes of offenses: First, offenses that may be committed only by a limited class of persons, viz. persons required to register under the provisions of the act; second, offenses that may be committed by any person. The first class of offenses is defined in the clause of section 1 (which we have designated A) reading as follows:

"A: `It shall be unlawful for any person required to register under the provisions of this act to import, manufacture, * * * sell * * *, or give away any of the aforesaid drugs without having registered and paid the special tax as imposed by this section.' * * *

"The second class of offenses is defined in a later clause of the same section (which we have designated B) reading as follows:

"B: `It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs except in the original stamped package or from the original stamped package.'"

Section 2 of the act defines an offense, reading as follows: "It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs * * * except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue."

The words "any person," found in the offense defined under section 2 of the act, refer to all persons. Nigro v. United States, 276 U. S. 332, 347, 48 S. Ct. 388, 72 L. Ed. 600.

A, under section 1, has reference only to dealers, and dealers are only those persons who sell in or from original stamped packages. Butler v. United States (C. C. A.) 20 F.(2d) 570, 573. Therefore the offenses defined in A of section 1 are limited to dealers as defined in the act, while B, section 1, and the offense under section 2 refer to all persons.

Examining count 1 of the indictment, then, under this analysis, it is readily apparent that the indictment was drawn under the offense as defined in section...