Ballerini v. AderholtBallerini v. Aderholt
- Reporters:
- ,
- Before:
- Bryan
Appellant, upon his plea of guilty to an indictment in two counts, was sentenced to the Atlanta penitentiary for five years on the first count and four years on the second count, the sentences to run consecutively. Both counts are based upon a single sale of an ounce of heroin, a derivative of opium. The first count charges that appellant made the sale without being registered and without having paid the special tax provided by law, and the second count charges that he made the sale without requiring from the purchaser a written order issued in blank by the Commissioner of Internal Revenue; all in violation of the Harrison Narcotic Act, as amended (
Under the Fifth Amendment one may not for the same offense be twice put in jeopardy. In determining what is the same offense the test usually applied is “whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, *353 the second cannot he maintained; when there could not, it can he.” 1 Bishop’s Cr. Law (9th Ed.) § 1052. In Morey v. Commonwealth, 108 Mass. 433, a leading case often cited by the Supreme Court, it is said: “The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” See Tritico v. United States (C. C. A.) 4 F.(2d) 664, where several Supreme Court cases on this subject are collected. To those cases should be added the more recent case of Albrecht v. United States, 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505. Ex parte Nielsen, 131 U. S. 176, 9 S. Ct. 672, 676, 33 L. Ed. 118, which also cites with approval the Morey Case; it is said: “Where, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.” Mr. Bishop expresses the view that, in order to give effect to the constitutional provision under consideration, “the same offense must be interpreted as equivalent to the same criminal act” (Bishop Cr. Law § 1060); and his view, subject to the qualification enforced in United States v. Lanza, 260 U. S. 377, 43 S. Ct. 141, 67 L. Ed. 314, and other eases, that prosecutions may be had for the same act in both the state and the United States courts, because of the jurisdiction, follows closely the rule of the Nielsen Case. The offense charged in each count was the unlawful sale of the same ounce of heroin. As there was but one sale, it would seem to follow that there was but one criminal act committed against the laws of the United States. The failure of appellant to register and pay the special tax, as charged in the first count, or to obtain a written order, as charged in the second count, could not have been the basis of a criminal prosecution. It was only in the event of a sale that such failure could become material. At last it was the sale, and not the failure to register, pay the tax, or secure the written order, that constituted the offense. In Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362, it was held that the agreement to receive compensation and the actual receipt of compensation constituted two offenses. In Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489, the offense of behaving in a drunken, boisterous, and indecent manner, prohibited by ordinance, was held to be different from the offense of insulting a public official by word of mouth, although the two offenses were proven by the same testimony. In Albrecht v. United States, supra, the holding was that possession and sale of intoxicating liquor wore separate offenses. In Poffenbarger v. United States (C. C. A.) 20 F.(2d) 42, a prosecution for abstracting the contents from mail bags was held not to be barred by a previous conviction upon an indictment which charged the larceny of the mail. In each of these eases facts were required to be proved in the second prosecution that were not essential to conviction in the first prosecution. Solomon v. United States, 58 App. D. C. 182, 26 F.(2d) 554, which was a prosecution under the Narcotic Law, proceeded upon the theory that separate and distinct transactions were alleged.
Because of the presumption created by the statute,
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.