*1 CASEY v. UNITED STATES. 413 of Statement the Case. And here, Congress fact that so declares that of one fixing its in the rates of duty motives is to fix so them shall they encourage industries of this in country with other competition producers countries in the sale of this can goods country, not invalidate a revenue act framed. so Section 315 its provisions are within Congress. power judgment of the Court of is Appeals Customs affirmed.
Affirmed. CASEY v. UNITED STATES. THE
CERTIORARI TO CIRCUIT COURT OE APPEALS EOR THE
NINTH CIRCUIT. Argued January 11, 500. April 9, No. 1928.—Decided 1928. prove a 1. Where evidence in criminal trial tends to inferentially that venue, supplementary the offence was within evidence might produced point be if attention were it, objection called to that the venue has not been established should specifically be made general request and not rested to direct a verdict for want of sufficient evidence. 417. P. providing
2. of the Anti-Narcotic Act in Section that absence of stamps drugs required prima shall be facie person evidence a violation the section pos- in whose drugs found, merely regulation session such the burden proof. P. applied provision person charged is constitutional as to a 3. This with purchase morphine possessed drug who unlawful under cir- warranting suspicion. cumstances P. 418. Upon case, court, acting in this the evidence on its own motion, justified deciding would not the Government induced the P. 418. crime. Act, applied Anti-Narcotic case,
5. The amended is within Congress. power P. 420. part. (2d) 752, affirmed in 20 F. a judgment the Circuit Certiorari, Appeals, affirming
Court of conviction under the Anti- TERM,
Argument for
Petitioner.
U.S.
The affirmance here
on the first count
Narcotic Act.
*2
purchase.
unlawful
The
indictment, charging
of the
sec-
upheld
but in
count, charging sales,
below,
ond
was also
by
be bad
Court was conceded to
Government.
this
Mr. John T.
petitioner.
for
1
not
sufficient to
viola-
Count
does
state facts
show a
that
failed to
allegation
petitioner
pur-
tion. There is
“ from
dealer
morphine
registered
the 3.4
of
a
grains
chase
in
a
Interstate and interdis-
prescription.”
pursuance
uni-
are so constant and
travel and communication
trict
purchased
in
versal,
presume
possession
in
where
found
one’s
would be
the district
is
reached
the Circuit Court
irrational.
conclusion
in
point
to the Seventh and
opposition
on
Appeals
be reversed.
Eighth Circuits should
if ad
of 3.4
even
morphine,
Mere
Act,
a violation of the
mitted, would
constitute
not.
presumption
is included
whether
venue
against
required
register
dealers who
only
is made
de
being
tax.
now conceded that
special
and pay
a
an unlawful
cannot
person,
fendant
not such
possessed
him
if he
against
even
the small
presumed
United States
morphine charged
Count
amount
States,
Fuey
Linder United
Moy,
241
Jin
864;
v.
S.
v.
U.
States, 294 Fed.
Lewis
United
Johnson v.
5;
753;
268 U. S.
Ging,
Hampton v.
Wong
Fed. 678;
295
Lamento (2d)
F.
289;
299 Fed.
legitimate
posses-
There is no
believable evidence of
either lawful or
which to
sion, upon
presume
purchase,
that defendant never possessed
unlawful.
It is
truth
life.
single grain morphine
his
Linder
case,
The Harrison Act
unconstitutional.
It was
in the
government
CASEY v. UNITED STATES. '415 Argument for the United States. Opium International Convention. the chief Hence, ob ject of Congress not to was, raise revenue, but stamp what regarded out as a nefarious traffic. emus Dor case, 86; Case, S. Child Labor Tax 20; U. S. United States v. Daugherty, 269 S. 360; U. Hammer v. Dagenhart, 247 U. S. Hill 251; Wallace, 259 U. S. Mitchell,
Solicitor General with whom Assistant At- torney Luhring General Harry and Mr. At- Ridgely, torney Department Justice, were the brief, for the United States.
Count charged regis- indictment failure to pay ter and the tax as a dealer. The statute expressly *3 provides only dispense drugs those who sell or the from stamped are dealers and packages required the In pay occupation tax. case there was no proof stamped drugs. the accused dealing was The unstamped evidence showed that dealt in drugs, 1 guilty the verdict under was Count based fact. Under the these conditions conviction under Count 2 should not be sustained. Weaver v. United States 15 States, F. F. (2d). 38; (2d) O’Neill v. United 19 322; States, (2d) Butler v. 20 F. 570.
The be statute should construed to make possession unstamped drugs place facie evidence of prima the well purchase, as the fact of unlawful and so it is construed not 1 invalid. The Count was charge purchase drugs in or The stamped packages. proof not from showed not in drugs stamped packages. To sus of unlawful the charge purchase tain the United States obliged presumption created rely upon was includes not the fact presumption only statute. The support as to purchase place purchase, but the so States, 7 (2d) F. 532 and Brightman venue. v. United (2d) 580, 12 contra. F. See Cain United also v. 14 F. (2d) DeMoss United v. TERM,
416 Opinion of the Court. 276 U. S. could prosecution a case where the It would be rare at the purchase of an unlawful without prove place fact the unlawful purchase, proving same time statutory- proved if must be purchase the fact given should not be worthless. statute presumption results if it may a unreasonable producing construction Katz, United States v. 354. Con- U. S. avoided. not un- be, it should the statute is strued as we contend Mobile, etc., Turnipseed, R. R. v. constitutional. States, Yee Hem 178; U. S. 35; U. States, O’Neill United (2d) F. by motion to point sufficiently was raised venue While record does not show that
direct verdict. the mo- expressly pressing mentioned or was not trial court in attention of the tion it was called trial. motion for new of the Court. opinion delivered the
Mb. Justice Holmes counts convicted two petitioner, Casey, him with the charged the first of which indictment, of an of three and four-tenths Seattle, within at original stamped package, in or Court. The conviction was jurisdiction of the sus- (2d) 20 F. Appeals. Court of tained Circuit *4 granted by certiorari was Court. writ by Here the second count was admitted the Government only so that matter considered is bad, to be the be upon can the first. whether the conviction be sustained that the evidence is had argued enough.' Casey is — many in for had practised law Seattle been in the years, had defended visiting King County jail and habit There was evi- prisoners addicted the use of narcotics. that tending dence to show on different occasions had in to furnish that promised opiates pur- them with and CASEY v. UNITED STATES. 417 Opinion of the Court. suance of promises such and pay by received him he liad given morphine, sent to them con- preparations cealed, in a said, by it was towels or the like solu- soaking tion of the If believed it drug. this evidence was showed that Casey was or control of what he possession sent and safely may it be inferred that he did not proclaim his illegal purpose by putting stamps upon towels. But charge purchase, not a There sale. was testi- mony directly concerning the and the Govern- purchase ment relies in at part least presumption violation of 1 of 17, 1914, the Act of December c. 1, § as February 24, 18, amended the Act of c. 1919, 1006; § 1057, 1130, 1131, 40 Stat. that that section purports create. U. C. Title §
The amended section makes the purchase, &c., sale opium derivatives unlawful except from stamped package, required the absence of the s stamps any of the said shall be drug prima facie evidence of a violation person of this section whose be found.’ may same For the petitioner argued presumption that thus created does not and, consistently with the to the Sixth Amendment Con stitution, cannot extend so far to show a purchase within the district and thus to the case within bring jurisdiction trial Court. Circuit Court of Appeals objection answered that to the venue was not specifically raised below. The Court was asked to direct a verdict for the defendant- on the ground evi dence not sufficient and elsewhere it has been held request enough question, such to save the a presumption place extended to the United, upheld. Brightman could not F. States, 532. Cain v. United 580. Hood (2d) (2d) F. States, 925. De v. Moss (2d) F. (2d) 14 F. 1021. But we of opinion that upon 318° 2S--27— *5 TERM, 1927.
Opinion the Court. U. S. jury- If the right. the facts of this case the Court in Seattle, established defendant, long believed that there- shortly he drug would, said that had not the but bought did, it, after furnish the inference that suppose Seattle is and it is reasonable to if strong, inference attention had been called to the could point stronger have been made still. effort the de- But the fence did not this detail but stop at was to show that nothing wholly had do with the and was business innocent the offence charged.
With
to the
regard
presumption of the
of a
thing manifestly not produced by the
there
possessor,
'a rational connection between the
proved
fact
and the
ultimate
presumed.’
fact
States,
Luria United
Yee Hem 9, 25;
U. S.
268 U. S.
Furthermore
there are presumptions-that
evi
dence
a proper sense but simply regulations of the
burden of proof. Greer
We do not feel at liberty to accept the suggestion that the Government induced the crime. A Court rarely can
CASEY v. UNITED STATES. Opinion of the Court. act with advantage its motion, own very rarely can be justified in giving judgment upon grounds that the record was not intended to present. Upon record, this was might testified and have been found for the Govern- ment that after Casey’s visits were addicts noticed by jailers to be under the influence that on narcotics and a previous occasion Casey money got morphine had at the request Cicero, the supposed stool It pigeon. does not appear expressly that this last was told to the jailer before supposed to plot entrap Casey, but in view of the relation parties very between the it was likely had the matter been issue very probably —and would proved. have been We not think are do that we If entitled to contrary. jailers assume-the known to the there was very to an habit- probable cause believe ual practitioner. His own was on language when he guard, that he had admitting frequently promised drug to as to said in prisoners, testimony what was (to sup- his effect that the man presence he was who they it) narcotics wanted plied boys with when habit, (as, thing that he hadn’t language importing his him all same today) with tend to the conclusion. We hardly jailers can assume did not the facts know keep them of a when we gross wrong, in order to convict up in mind that the case was tried and record made Casey according in mind. Furthermore to without to in no induced commit the crime story way to to request of Cicero which he beyond simple seems and as a matter hesitation of course. have acceded without evidence seems have promised to the According Nelson, appear who does to have been morphine to persuaded are not the con- We supposed plot. from or than was different worse or- officials duct bootlegger. suspected aof Whatever dering a drink to the truth of the testimony we feel may we doubts on the only question them to consider liberty not at TERM, J., 276 U.S.
McBeynolds, can be before the for uneasiness grounds Court. The considered another only by power. measure obviously statute is much more a revenue emus, Dor 86, when United States than U.
now S. decided, and a considerable return. produce is said States, late Alston too Labor on Child attempt overthrow the whole act *7 Case, Tax that no opium 259 U. S. is said also in the and at all events the produced modified that at least statute has been so now Moy, States Jin to Fuey does not apply U. S. v. Wong Sing, this case. United States 18, 21. 260 U. S. pass needing points. We discussion some minor as not
Judgment upon count affirmed. first McReynolds, dissenting. Me. Justice Butler. the views stated Justice accept I Mr. out the unreasonableness clarity he points With for the by counsel of the statute advocated construction I go But further. United States. be may that one provision
The under which we told unstamped an unlawfully purchased to have presumed is found district where he within the package guar- those of it conflicts with constitutional arbitrary all against protect anties heretofore to supposed rational con- suggested and punishment. conviction fact and ultimate proved between the fact nection presumed imaginary. made following and the confession
Once thumbscrew I sup- method was crude easy; and, conviction but that ground. be declared some pose, now would unlawful lighten is to burden Hereafter, presumption con- the trouble of spared The victim will be prosecutor. mutilation or dis- go and will his cell without fessing outcry. quieting
CASEY UNITED STATES. J., dissenting. Brandéis, Probably prison most of those accelerated to under will and their present Act be unfortunate addicts abet- tors; but even live under the And they Constitution. where will the next step take us?
When Harrison Anti-Narcotic Law became effective probably drug opium some containing could have been found a million more households within the Union. Paregoric, laudanum, Dover’s common Powders, were Did man every remedies. one possessed woman who instantly of these become criminal presumptive liable to imprisonment unless he could explain the satis- jury got faction of a when where the stuff? Cer- I tainly, cannot assent such and it notion, seems say worthwhile so. concurs in these views.
Mr. Justice Butler Mr. Justice Brandéis, question is whether presented possession within
the of district not in the morphine original stamped package is evidence sufficient to sustain the charge it was I illegally therein. to purchased have occasion question. my consider that in the For, opinion, prose- cution fail must the because officers of Government insti- gated the commission alleged crime.
These are facts disclosed the Government’s evidence. In the of Divi- Washington, Western District Northern sion,'prisoners trial for federal awaiting offences are com- monly King County detained at Jail. The prisoners’ lawyers for consultation cli- frequently come there with ents. At of the request prisoners, jailer telephones the the lawyers purpose. come for that compart- small attorneys’ cage provided. the Prior to ment —called —is jailer had, the here in question, upon events the such request, time, from time to telephoned Casey, come see than the prisoners accused of crimes other violation of TERM,
Brandéis, J., 276 U.S. also telephoned Narcotic He had Act. doubtless of these crimes. request who were accused prisoners in a of narcotic attorney For had acted as number Casey after thought he did—that jailer cases. The observed —or the influ- Casey visited were under came, some those brought that Casey ence narcotics. He had suspected him, following them To scheme was drug. entrap officers, Close, devised Patterson and federal narcotic and George Cicero, carried out with aid convicted jail charge in the addict, felon and then drug alleged forgery, Nelson, and Mrs. .the sister-in-law of Roy prisoner drug another Nelson, addict. and
On 29th, December Patterson and Close installed a that, dictaphone attorneys’ cage arranged so and adjacent room, they from an could both hear conversa- cage occupants. they depos- tions and see Then jail ited with superintendent $20 tO' Cicero’s credit; arranged request jailer with him to to summon Casey to the jail; to come also when that, Casey came, would ask him to procure Cicero some him the for that pay jailer $20 would purpose. telephoned Casey requested. Thereafter the federal Casey agents waiting. were did come until about morning o’clock on 31st. Cicero talked attorneys’ Casey with him cage gave an By $20. order for the arrangement, Casey talked there Roy with him Nelson, gave also who an order on the $50. Both superintendent orders immediately were cashed. Mrs. Nelson with talked in the corridor. testimony Patterson, Close, Cicero and Mrs. Nelson, if believed, prove sufficient that Cicero and *9 Roy Casey procure Nelson them; asked that to do that agreed so; money paid was for that that it purpose; arranged was the morphine that smuggled jail should into the in laundry; and that CASEY UNITED STATES. J., Brandéis, at call that she would Casey with arranged
Mrs. Nelson having gone first call, did afternoon. She his office and conferred with agents the narcotic to the office of Casey’s office at testified that she saw them. She her the Casey gave pack- Japanese; Chinaman or immediately took it and that she age Nelson; for Roy agent narcotic narcotic office. federal to the federal one of soaking upon a chemist testified that who is by Nelson to the office Mrs. package brought towels morphine. contained he found that it mistaking
I am aware that relative social values courts — foul justify end that a desirable cannot forgetting use in their zeal to sanctioned the have, punish, means — criminal violation of through prop- of evidence obtained rights by other detectives erty personal practices objection But the here of a dif- revolting. even more merely ferent nature. It does not rest the char- upon acter of the evidence or the fact that the evidence illegally prosecution obtained. obstacle alleged in the crime instigated lies fact Government; of the the act for which the officers punish Government seeks defendant is the fruit conspiracy their criminal to induce its commission. may decoys The Government set to entrap criminals. it may But or create a provoke crime and then pun- If criminal, ish its creature. guilty 3.4 purchasing crime morphine, on December 31st, charged, it is because he yielded to the tempta- by the presented tion officers. Their conduct is not a de- fence to him. For no officer of the Government power has to authorize the violation of an Act Congress of an conduct officer can excuse the violation. But does not follow that the court must suffer detective- criminal punished. made to be To permit that would be tantamount to a ratification the Government of the *10 TERM,
424 J., dissenting. 276 TJ.S. Brandéis, officers’ unjustifiable unauthorized and Com- conduct.1 pare States, Gambino v. United
This case unlike confessedly those defendant where intended to- having commit a crime and the Government knowledge thereof and mez’ely presented opportunity set decoy. its had, prior So far as the officers appears, to the events no that 31st, on December for belief basis har- violating jailer that law, except bored a stand and suspicion. Casey took witness that subznitted himself to He testified cross-examination. away or bought, sold, given possessed had “never that he had single grain morphine, or other opiate” anyone “never or else to procured, suggested procure or narcotics kind.” He testified Nel- payments on orders Cicero and Roy made son were on account services to be rendered payments against as counsel for the defence the prosecutions testi- every He denied material fact pending. them then his supported for the prosecution fied to witnesses ad- The Government’s witnesses oath other evidence. attorneys’ the conversations were cage mitted that voice; tone of there ordinary carried on secretly; speak privately voice to lower the effort all that was said they have heard without could They admitted that when dictaphone. the use Casey’s office under searched a search agents the narcotic 1 States, 674; Wai v. United Adams, 59 Fed. Woo v. United States 65; States, v. 240 Fed. 412; Yick v. United Voves Sam 223 Fed. 433; States, 191; 255 States, Peterson v. United Fed. 249 Fed. United 983; States, v. United 273 Lynch, 256 Fed. Butts v. United States 824; Quantities, etc., 290 Fed. New v. 35; Certain Fed. United States Capuano States, F. 128; v. United 9 States, Fed. 299 v. man United States, (2d) 568; States, 16 F. Jarl v. United (2d) 41; Silk (2d) Di 20 See also 891; (2d) F. F. Cline Washington, 222; (2d) United States v. F. v. United Salvo Linton, R. 583. Compare Blaikie v. 18 Scot. L. (2d) 160, 162. 20 F.
CASEY UNITED STATES. J., Butler, warrant, the evening of December 31st, did not they *11 find any any narcotics or any trace of them other incriminating article; and that when, at about the same time, they arrested Casey, he was taking with supper his wife and daughter at his home seven miles from Seattle. Whether the charge against Casey is true, we may not enquire. if But under such circumstances, of suspicion jáiler mere justify entrapment, could little would be left of the doctrine.
The fact that
objection
ground
on the
of entrap-
ment was
taken
defendant, either below
Court,
legal significance.
is without
This prosecution
should be
stopped,
right
because some
has
Casey’s
been denied, but in
protect
order to
the Government. To
protect it from illegal conduct of its officers. To preserve
of its
In
purity
courts.
my opinion,
judgment
should be
to quash
with direction
vacated
indictment.
Healy,
United States
Compare
349,
Fed.
350;
Echols,
States
The count unlawful first 3.4 grains morphine. charges unlawful second sales. both was convicted on and sentenced to the Defendant fourteen penitentiary each, for months terms to The Circuit Court concurrently. Appeals run affirmed on both counts. Here Government judgment the conviction on the second count rightly says This Court accepts not be sustained. that view should count, is entitled hake petitioner as to and, reversed. judgment Harrison § is under Narcotic
The indictment as amended 1914, 1, 785, c. 38 Stat. 7, Act of December TERM, J., 276 U.S. Butler, It was 1057, 40 Stat. 1919, 18, e. February 24, granting 8 of Constitution 1, § Art. enacted under The words taxes. lay collect Congress power count found which the first under the section are: “ . . . any person It shall unlawful or from the drugs except jin ... the aforesaid package ....”' stamped original follows: of the first count substance essential day December, on the 31st Thomas J. Washington, unlawfully purchase did Seattle, at stamped and not or from the unknown, person morphine. 3.4 package *12 related larger testimony of the heard part far By prove count and was admissible to the second to in That evidence can not alleged the first. purchase brought now to sustain conviction on fairly be forward first count. morphine of not crime. Mere or is purchase possession make and has no Congress attempted, power, has not of is of gist purchase offense. accusation either an in taken from a morphine that was not or grains 3.4 of when delivered to defendant. That stamped package delicti. the corpus a testimony finding sufficient to sustain
There was place specified, possession had defendant at the time But was no evidence to morphine. 3.4 there grains of got from it. There how, when or where or whom show and the crime possession much difference between such in provision is invoked lieu of evi- charged. statutory It in para- is found the twelfth bridge gap. dence to immediate order show the section; and, graph on, relied three clauses of the words first environment are.quoted. paragraph of the “ any person sell, unlawful for purchase, be shall any drugs distribute except aforesaid dispense, CASEY UNITED STATES. J., Butler, or from original stamped package
stamped and the absence tax- package; appropriate paid stamps any of the aforesaid shall be drugs prima facie of violation evidence of this section person possession whose same be may found; posses- any sion of original stamped package containing any of the aforesaid has drugs by person registered who riot and paid special required taxes as this section shall ” prima facie evidence of liability such special tax: - This defines many They section pur- offenses. include chasing, selling, dispensing, distributing, importing, manufacturing, producing, dealing in, ad- compounding, ministering and giving away each numerous drugs mentioned in the section. The things forbidden are not essentially alike. Some are different from and in- consistent with the others. It can not reasonably be said that mere of 3.4 morphine without stamp thereon was sufficient to establish prima facie that defendant guilty of all these crimes, all that related to or even respectively to those involv- ing manufacture, sale the 3.4 grains. There is more reason to select one of these than there is to another for the application choose statutory rule of evidence. “The *13 absence of appropriate tax-paid stamps cannot be said to make dissimilar out inconsistent offenses. stamps are Tax-paid significant payment to show of taxes and their absence under some circumstances properly may evidence non-payment. According be to words, its merely clause in question makes such absence “prima facie evidence of a violation of section,” this the clause an following possession malees stamped pack by age containing drug registered, one not evidence of liability Fairly for tax. considered both clauses have do liability. to with tax The first to the tax on the drug, and the to the tax imposed importers, second dealers, TERM, 1927. J., U. S.
Butler, reasonable That would be physicians, etc. construction accused of the law those against would not stretch the by crimes the section. created Act is to always And it is to' be remembered “ It and collect taxes.” lay measure to construed as on each The tax is one cent has no existence. legal other had 3.4 thereof. Defendant part ounce or fractional of failure on it. He is not accused stamp without charged punish- a tax. The unlawful pay $2,000 by imprisonment by a fine of not more than able C., U. S. Tit. years five not more than both. only legal justification penalties such 26, 705. § of taxes. they are calculated aid collection is that taxing measure say is a continue to that this Act hard to law as a Eagerness it. to use federal order to sustain measure to combat the purpose for habit —a police opium power legislate has no lead Congress which —should that shock or the construction of laws to the enactment common sense. all, statutory rule evidence should be
And above construed.having salutary doc- regard the ancient and play known and cherished fair rightly trine country, every the bar and the courts of this people, innocent; presumed and, trial for crime is to be person on him, satisfy to convict must order evidence beyond guilty reasonable doubt that he is jury States, United 156 U. S. charged. 432, crime See Coffin Sayre Cochrane and v. U. S. Davis connec- any, -if and the sub- tion, between shown charged of the offense remote. Attention stance is too so far. goes has not been called to decision that None be found. can *14 & OHIO BY. v. LEITCH.
CHES. Syllabus. is no reasonably There evidence in the record that 3.4 tends to show that defendant purchased that, when it was not in or purchased, taken from the stamped package.
I opinion judgment am of should be reversed. Sanford, Justice Me.
I think case statutory made out prima provision and that evidence, judg- facie ment should be reversed.
CHESAPEAKE AND OHIO RAILWAY COMPANY LEITCH. CERTIORARITO THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA. Argued 14, April 9, No. March 1928.—Decided engineer being assumes risk locomotive struck a mail (Southern hanging Co. Berk crane mail sack from it Pacific though 415), placed shire, even some S. inches closer to the general plan provided, unques track than the for the railroad disregard precautions being tionable of obvious shown. P. 230, reversed.
101 W. Va. U. a judgment of the Su- Certiorari, West Appeals Virginia, Court of preme sustaining in an recovery action under Federal Employers’ Act. Liability Douglas petitioner.
Mr. W. Brown for Holt, George Mr. John H. with whom Messrs. B. Mar- S. Dinkle on the brief, respondent. tin and were Rufus