Wilson v. United States

• Decision Date: 05 January 1916
• Docket Number: 213.
• Citation: 229 F. 344
• Parties: WILSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

229 F. 344

WILSON v. UNITED STATES.

No. 213.

United States Court of Appeals, Second Circuit.

January 5, 1916

L Jersawitz, of New York City, for plaintiff in error.

H Snowden Marshall, U.S. Atty., of New York City (H. A Content, Asst. U.S. Atty., of New York City, of counsel), for the United States.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

LACOMBE Circuit Judge.

There is no dispute about the facts. There was found in defendant's possession a substantial quantity of opium. He admitted that he kept it solely for the purpose of smoking it; that whenever he desired to smoke he would take some of the opium found in his possession, 'cook it,' and smoke it. He did not produce opium, nor import, nor manufacture, nor compound, nor deal in it. Nor did he dispense it, nor sell, distribute, or give it away. He was employed as a jewelry salesman; no physician had ever prescribed opium for him; he was not a nurse, nor a federal state, or municipal official such as the statute enumerates, nor was he the employe of a person registered under the statute, nor was he a warehouseman or common carrier.

Section 1 of the act provides as follows:

'That on and after the first day of March, nineteen hundred and fifteen, every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away opium or coca leaves or any compound, manufacture, salt, derivative, or preparation thereof, shall register with the collector of internal revenue of the district his name or style, place of business, and place or places where such business is to be carried on: Provided, that the office, or if none, then the residence of any person shall be considered for the purposes of this act to be his place of business. At the time of such registry and on or before the first day of July, annually thereafter, every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away any of the aforesaid drugs shall pay to the said collector a special tax at the rate of $1 per annum: Provided, that no employe of any person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away any of the aforesaid drugs, acting within the scope of his employment, shall be required to register or to pay the special tax provided by this section: Provided further, that the person who employs him shall have registered and paid the special tax as required by this section: Provided further, that 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 shall not be required to register and pay the special tax as herein required.

'It shall be unlawful for any person required to register under the terms of this act to produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away any of the aforesaid drugs without having registered and paid the special tax provided for in this section.

'That the word 'person' as used in this act shall be construed to mean and include a partnership, association, company, or corporation, as well as a natural person; and all provisions of existing law relating to special taxes, so far as applicable, including the provisions of section thirty-two hundred and forty of the Revised Statutes of the United States are hereby extended to the special tax herein imposed.'

Section 8 provides as follows:

'That it shall be unlawful for any person not registered under the provisions of this act, and who has not paid the special tax provided for by this act, to have in his possession or under his control any of the aforesaid drugs; and such possession or control shall be presumptive evidence of a violation of this section, and also of a violation of the provisions of section one of this act: Provided, that this section shall not apply to any employe of a registered person, or to a nurse under the supervision of a physician, dentist, or veterinary surgeon registered under this act, having such possession or control by virtue of his employment or occupation and not on his own account; or to the possession of any of the aforesaid drugs which has or have been prescribed in good faith by a physician, dentist, or veterinary surgeon registered under this act; or to any United States, state, county, municipal, district, territorial, or insular officer or official who has possession of any said drugs, by reason of his official duties, or to a warehouseman holding possession for a person registered and who has paid the taxes under this act; or to common carriers engaged in transporting such drugs: Provided further, that it shall not be necessary to negative any of the aforesaid exemptions in any complaint, information, indictment, or other writ or proceeding laid or brought under this act; and the burden of proof of any such exemption shall be upon the defendant.'

The contention of defendant is that he is not covered by the provisions of section 8 because the words 'any person' as used...