United States v. Johnson, Cr. A. No. 296.

Decision Date26 January 1944
Docket NumberCr. A. No. 296.
Citation53 F. Supp. 596
PartiesUNITED STATES v. JOHNSON et al.
CourtU.S. District Court — District of Delaware

Stewart Lynch, U. S. Atty., of Wilmington, Del., for the United States.

H. Albert Young and Alexander Jamison, both of Wilmington, Del., for defendants.

LEAHY, District Judge.

This matter is here on motions to quash and demurrers to an information charging defendants with violation of an Act of Congress, 56 Stat. 1087, approved December 24, 1942, 18 U.S.C.A. § 420f. The pertinent provisions of the Act provide:

"That it shall be unlawful, in the course of the conduct of a business of constructing or supplying dentures from casts or impressions sent through the mails * * * to use the mails * * * for the purpose of sending or bringing into any State or Territory the laws of which prohibit — * * *

"(2) the construction or supply of dentures by a person other than, or without the authorization or prescription of, a person licensed under the laws of such State or Territory to practice dentistry; or,

"(3) the construction or supply of dentures from impressions or casts made by a person not licensed under the laws of such State or Territory to practice dentistry, any denture constructed from any cast or impression made by any person other than, or without the authorization or prescription of, a person licensed under the laws of the State or Territory into which such denture is sent or brought to practice dentistry." The Act contains definitions and penalties.

The information alleges violation of the statute in that on August 25, 1943 defendants, while engaged in the course of conducting a business of constructing or supplying dentures from casts or impressions to be sent through the mails or in interstate commerce, "did use the United States mails for the purpose of sending a set of dentures from the State of Illinois into the State of Delaware, * * *". However, it is essential to note that there is no allegation that the dentures were, in fact, received or delivered in the State of Delaware.

The information then alleges that the laws of Delaware "prohibit the taking of impressions or casts of the human mouth by a person not licensed under the Delaware laws to practice dentistry and likewise prohibits the construction or supply of dentures by a person other than and without the authorization or prescription of a person licensed under the Delaware laws * * * to practice dentistry and also prohibits the construction or supply of dentures from impressions or casts made by a person not licensed under the Delaware laws * * * to practice dentistry * * *". The information continues by charging that the dentures mailed by the defendants in Illinois to be sent into Delaware were not "constructed by or under the authorization of or pursuant to a prescription of a person licensed under the laws of the State of Delaware to practice dentistry * * *". This is the initial appearance of the federal statute before a federal court.

Defendants attack the information on several grounds: (1) the court of this district does not have jurisdiction; (2) the form of the Delaware statutes is such that they are not integrated or covered by the federal provisions; and (3) if they are covered the state and federal statutes are unconstitutional. I shall discuss merely the question of jurisdiction for my holding in regard to it will be dispositive of the matter now before me.

Defendants contend that unlawful use of the mails under this statute can be prosecuted only in the district in which the prohibited matter was deposited in the mails. I think this position sound. The significant words of the statute are "to use the mails * * * for the purpose of sending or bringing into any State * * *." That which the statute condemns, therefore, is the use of the mails for the purpose of sending or bringing prohibited matter into the State. It is well established — with minor exceptions none of which apply here — that for most crimes an act and intent are essential. The crime defined in the statute sub judice requires these elements. Obviously, both of these operative facts occurred in Chicago — the place where the package was mailed with the purpose of sending or bringing it into Delaware.

In short, there was a completed criminal offense at the moment of mailing because use plus purpose of sending or bringing into any State is what the statute prohibits. It is not an essential prerequisite to a valid conviction that the purpose or intent be, in fact, effectuated. Since the crime was complete at the place of sending, with the purpose mentioned, the government's contention bottomed on Section 42 of the Judicial Code1 (28 U. S.C.A. § 103) and cases decided under it is wide of the mark. The typical cases under Section 42 are those involving, for the most part, the crime of conspiracy. A conspirator may be prosecuted either where the conspiracy is formed or where the overt act is committed. Grigg v. Bolton, 9 Cir., 53 F.2d 158; United States v. Jordan, D.C., 22 F.2d 702. In such situations the statute, in order to prevent a failure of justice, has made the offense punishable in either district as if it had been wholly committed therein. The statute was required to take this form in order to conform to the Sixth Amendment to the Constitution which guarantees to an accused the right to jury trial in "the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." It is necessary to distinguish carefully situations where an offense was committed in both districts or where it was completed in the second district. See In re Palliser, 136 U.S. 257, 10 S.Ct. 1034, 34 L.Ed. 514; United States v. Freeman, 239 U.S. 117, 36 S.Ct. 32, 60 L.Ed. 172. Manifestly, such cases are inappropriate here where the offense was completed at the district of mailing, and where the statute invoked does not create an offense in a second or other district.

The meaning of the language of the statute is plain; and in the absence of a special venue provision the...

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4 cases
  • Wilmington Trust Co. v. Mutual Life Ins. Co.
    • United States
    • U.S. District Court — District of Delaware
    • September 27, 1946
    ...with the apparent interpretation of the state official charged with the administration of the insurance laws. Cf. United States v. Johnson, D.C.Del., 53 F.Supp. 596, 598, affirmed 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236. This is based on the well settled rule of law that the construction p......
  • United States v. Anderson
    • United States
    • U.S. Supreme Court
    • June 10, 1946
    ...a demurrer to an indictment on the ground of improper venue the Government may appeal directly to this Court. Compare United States v. Johnson, D.C., 53 F.Supp. 596, with United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236; United States v. Lombardo, D.C., 228 F. 980, with Un......
  • United States v. Johnson
    • United States
    • U.S. Supreme Court
    • December 18, 1944
    ...The information was quashed on the ground that prosecution of appellees could only be had where the illegal dentures were deposited. D.C., 53 F.Supp. 596. A second information, adding counts alleging transmission into and delivery in Delaware, was quashed by entry of a formal order referrin......
  • IN RE PHILLIPS'PETITION, 2158.
    • United States
    • U.S. District Court — Southern District of California
    • October 23, 1958
    ...should have a meaning at war with the interpretation of the governmental department charged with its administration." United States v. Johnson, D.C., 53 F. Supp. 596, 598, affirmed 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. Weight is added to the "suspension" theory when we note the several place......

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