Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois; Louis Fitz-Henry, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Appellant was charged by indictment with having violated what is commonly known as the Harrison Narcotic Act of 1914, as amended, and also what is commonly known as the Narcotic Drugs Import and Export Act of 1909, as amended. The indictment was in five counts. The first count alleged a sale to Ella Rush on May 27, 1929, of two grains of morphine hydrochloride not in or from an original stamped package. The second count alleged a sale to the same party, on May 28, 1929, of ten grains of the same drug not in or from an original stamped package. The third count alleged a sale to the same party, on May 29, 1929, of eight grains of the same drug not in or from an original stamped package. The fourth count charges appellant with having knowingly received, bought, sold, and facilitated the transportation, concealment, and sale, on May 31, 1929, of twenty grains of the same drug, which had been fraudulently imported into the United States. The fifth count alleges a sale to Ella Rush, on May 29, 1929, of ten grains of the same drug, which sale was not in pursuance of a written order of Ella Rush upon a blank form issued for that purpose by the Commissioner of Internal Revenue.
The first, second, and third counts were based upon section 703, 44 Stat. 96 (26 USCA §§ 211, 691-695, 704); the fourth count was based on the Act of 1909, § 2, 35 Stat. 614, as amended in 1914, 1922, and 1924 (21 USCA §§ 172-177). The fifth count was based on section 2, 38 Stat. 786 (26 USCA § 696). The jury returned a verdict of guilty as to counts 2, 3, and 5, and not guilty as to counts 1 and 4. The court assessed a punishment on each of the second, third, and fifth counts of five years' imprisonment and a fine of $2,000, the terms of imprisonment to run consecutively.
It is appellant's contention that the sentence imposed is excessive, unreasonable, and for a longer period of imprisonment and a greater fine than the maximum fixed by law; that the facts proved under counts 2, 3, and 5, establish, if anything, but one offense, and that he cannot legally be held guilty of separate offenses; that the maximum punishment for any single violation of the statute in controversy is a fine of $2,000 and imprisonment for five years.
Section 703, 44 Stat. 96 (26 USCA § 692), provides that it shall be unlawful for any person to sell opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof, except in the original stamped package or from the original stamped package. Counts 1 and 2 are drawn under this section. They charge two separate sales, on different days but to the same party, and the evidence supports the charges.There is nothing in the statute to indicate that Congress intended that such a state of facts should be considered as a continuing offense, or that such an offender should suffer but one penalty, or that the aggregate penalties should not exceed the maximum penalty provided for a separate offense.The offenses charged and proved are as separate and distinct as if appellant had sold the drug to different parties on the dates mentioned.
The sale referred to in the third count is the same sale upon which the fifth count is based, but the circumstances under which the sale was made were such as to render the sale illegal for two different reasons, as set forth in and as violative of two separate statutes. In other words, in making one sale appellant violated two separate sections of the law, one of which required the sale to be made in or from the original stamped package, upon which section count three is based, and another section which required the sale to be made in pursuance of a written order of the purchaser upon a blank form issued for that purpose by the Commissioner of Internal Revenue, upon which section the fifth count is based. It cannot be said that the evidence necessary to establish the truth of either of the two counts in controversy would establish the other count, for indeed the opposite is true.
The test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by statute. Morgan v. Devine, 237 U.S. 632, 35 S. Ct. 712, 59 L. Ed. 1153.
That distinct violations of law growing out of the same transaction constitute distinct offenses is fully supported by Burton v. United States, 202 U.S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann.Cas. 362; Gavieres v. United States, 220 U.S. 338, 31 S. Ct. 421, 55 L. Ed. 489; Ebeling v. Morgan, 237 U.S. 625, 35 S. Ct. 710, 59 L. Ed. 1151; Braden v. United States (C.C.A.) 270 F. 441; and Roark v. United States (C.C.A.) 17 F.2d 570, 51 A.L.R. 870. "There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction." Albrecht v. United States, 273 U.S. 1, 47 S. Ct. 250, 254, 71 L. Ed. 205.
In this case the court imposed upon appellant separate punishments (a) for sale of morphine which was not in the original stamped package or from the original stamped package, (b) for selling on another day morphine not in the original stamped package, and (c) for selling morphine without a written order from the purchaser and without using a form for such order issued by the Commissioner of Internal Revenue.
Our attention has been called to the case of Ballerini v. Aderholt (C.C.A.) 44 F.2d 352, 353, wherein appellant was charged in one count of the indictment with having sold a narcotic without being registered and without having paid the special tax provided by law; and in the second count with having made the sale without requiring from the purchaser a written order. Upon his plea of guilty the District Court sentenced him on both counts and ordered that the sentences run consecutively. The Circuit Court of Appeals of the Fifth Circuit reversed the District Court and held that there was but one offense, and in so doing it used the following language: "At last it was the sale, and not the failure to register, pay the tax, or secure the written order, that constituted the offense." This we cannot accept as a proper construction of the statute, nor of the Supreme Court decisions, supra. Neither the sale, the failure to register, pay the tax, or secure the written order, in and of itself constitutes a crime; but the sale in conjunction with either the failure to register, pay the tax, or secure the written order does constitute a separate crime as we interpret the statute, and as we think the Supreme Court has interpreted it.
Whether the sentence imposed is unduly severe we are not in position to say accurately. Circumstances not disclosed by the record may justify it, and we cannot disturb the judgment on this account. United States v. Daugherty, 269 U.S. 360, 46 S. Ct. 156, 70 L. Ed. 309.
In instructing the jury upon the competency and credibility of appellant as a witness, the court said: "There was a rule at one time that one who had been convicted of a felony was an incompetent witness. That is not the rule now, but he is a competent witness and the jury has a right to take the fact of a former conviction into consideration in determining the degree of ...