United States v. Jin Fuey Moy

• Decision Date: 19 January 1918
• Docket Number: 89.
• Parties: UNITED STATES v. JIN FUEY MOY.
• Court: U.S. District Court — Western District of Pennsylvania

253 F. 213

UNITED STATES v. JIN FUEY MOY.

No. 89.

United States District Court, W.D. Pennsylvania.

January 19, 1918

E Lowry Humes, U.S. Atty., and John M. Henry, Asst. U.S. Atty both of Pittsburgh, Pa. John W. Dunkle and N. S. Williams both of Pittsburgh, Pa., for defendant. Joseph Stadtfeld and R. P. Marshall, both of Pittsburgh, Pa., for Jos. Fleming &amp Son Co.

THOMSON District Judge.

The defendant was indicted under section 2 of the Harrison Anti-Narcotic Act (Act Dec. 17, 1914, c. 1, 38 Stat. 786 (Comp. St. 1916, Sec. 6287h)), wherein it is charged that he did unlawfully sell, barter, exchange, and give away certain drams of morphine sulphate to different persons therein named. The indictment contains 20 counts, in form all the same, differing only in the names of the persons to whom the drugs were distributed and the amount dispensed. A motion to quash the indictment was made, alleging the unconstitutionality of the Harrison Act, and that the indictment as drawn does not charge the defendant with the commission of any offense prohibited by the act. The motion to quash was overruled, and the defendant tried and convicted on eight counts. The case is now before the court on a motion in arrest of judgment.

The reasons assigned in support of this motion are: First, the so-called Harrison Anti-Narcotic Act is unconstitutional and void; second, the so-called Harrison Anti-Narcotic Act is unconstitutional and void, so far as it does or attempts to control and regulate the practice of a physician; third, the indictment as a whole does not charge the defendant with the commission of any offense prohibited by the so-called Harrison Anti-Narcotic Act, or with the commission of an offense prohibited by any other law of the United States; fourth, there was no competent evidence submitted upon the part of the United States to sustain the verdict rendered by the jury.

First, as to the constitutionality of the Harrison Act. It seems to me that this act should be read in the light of the previous legislation of Congress in restraint of the traffic in opium. The act approved February 9, 1909 (35 Stat. 614, c. 100, Sec. 1 (Comp. St. 1916, Sec. 8800)), provides:

'That after the first day of April, 1909, 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.'

The second section (section 8801) provides a maximum punishment of two years' imprisonment and $5,000 fine, of any person who shall fraudulently or knowingly import or assist in doing so, any opium or derivative thereof contrary to law, or who shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such drug after importation, knowing the same to have been imported contrary to law. It further provides that the drug shall be forfeited and destroyed, and that possession of such drug shall be deemed sufficient evidence, if unexplained, to authorize conviction of the person in possession thereof.

It is plain that Congress had the power to prohibit altogether the importation from foreign shores of this deadly narcotic, or they had the right to admit it under such restrictions as to its use, in protection of the public, as they might see fit to impose. And having done so, they may prescribe such regulations, penal or otherwise, as will effect the purpose intended; that is, to restrict its use to that for which alone it was admitted.

Every provision of the Harrison Act which deals with the use of the drugs in question shows that its use is restricted and intended to be confined to medicinal purposes only. This is in harmony with the law prohibiting its importation or use for any other purpose. It is a matter of common knowledge that no opium is produced in the United States; but this can perhaps not be assumed, when the act undertakes to deal with those who produce it. In the case of the United States v. Jin Fuey Moy, 241 U.S. 394, 36 Sup.Ct. 658, 60 L.Ed. 1061, Ann. Cas. 1917D, 854, the Supreme Court said:

'A statute must be construed, if fairly possible, so as to avoid, not only the conclusion that it is unconstitutional, but also grave doubts upon that score.'

In the same opinion the court said:

'It may be assumed that the statute (the Harrison Act) has a moral end as well as revenue in view, but we are of opinion that the District Court, in treating those ends as to be reached only through a revenue measure and within the limits of a revenue measure, was right.'

I am not convinced that the Congress in enacting the Harrison law exceeded its constitutional powers, and the motion in arrest of judgment on this ground cannot be sustained.

Again it is urged that the indictment as a whole does not charge the defendant with the commission of any offense prohibited by the Harrison Act. All the counts of the indictment, which are the same in form, are drawn under the second section of the act, and...