Aрpellants were convicted under both counts of an indictment, the first of which charged the purchase and sale of unstamped morphine in violation of the Harrison Anti-Narcotic Act (Sec. 692, Tit. 26, USCA), and the sеcond of which charged, as of the same time and place, the buying and selling of the same amounts of morphine which they knew had been unlawfully imported into the United States, thus constituting an offense under the Nаrcotic Import Statute (Sec. 174, Tit. 21, USCA). They were sentenced to five years imprisonment under the first count and ten years under the second count — the two terms to be concurrent.
The first objection is that the two statutes are so far repugnant that the later one (Harrison Act, 1914) repeals the earlier (Import Act, 1909), or, at least, that prosecutions under both, if based upon the same act or conduct, are inconsistent and election should have been compelled.
We
cannot sustain this objection. Cases are common where a single act is a violation of two statutes. Here there is no reрugnancy. The Import Act is a customs law, the Harrison Act is a revenue law. When a single act is a violation of two laws, it may be penalized in each; but this conclusion leads to an inquiry as to double punishment. Thе same act may not be twice punished by the same sovereignty, merely because it violates two laws. Identity, as to double punishment as well as to double jeopardy, is shown if the same evidence neсessary to prove either offense will also necessarily establish the other and this relation is reciprocal (and perhaps even if not reciprocal) ; in other words, can either be shown without disclosing the other? Reynolds v. U. S. (C. C. A. 6)
However, this does not avail defendants if the conviction and sentence under count two are valid; hence, that must be examined. To what extent statutory presumption can be validly created has been the subject оf much inquiry. The presumptions arising by these two statutes are so related and one so affected by rulings upon the other that both must be considered. They must be examined in the light of the restriction that they cannot bе merely arbitrary, but the declared inference must have some rational basis; and of course they should he considered so as, if possible, to preserve their validity under this restriction. 1
Looking first at the Harrisоn Act: The declaration is that possession of the unstamped package shall be evidence of “violation of this section,” that is to say, evidence of some act which has been prohibitеd by this section. By this section several things have been prohibited, and as to some of them it is difficult to see any rational basis for this declared inference; but one of the things prohibited is the purchase, and certainly possession supports a reasonable inference of previous purchase by the possessor. To this extent, therefore, this provision of the Harrison Act presents no question now trоublesome. Casey v. U. S.,
The rejection of the narrower and the-adoption of the broader construction compel the decision of the constitutional question. Is the inference too arbitrary to be permitted?' The recent decisions in Manley v. Georgia,
The argument for distinction is that the importation of smoking opium was unconditionally forbidden, and hence that its importation must have been unlawful and every
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possessor must know it; while crude opium may lawfully be and is imported into the United States and morphine may be and' is manufactured in the United States in large quantities;
2
hence, as to morphine, the presumption that it was made abroad and unlawfully imported, to defendant’s knowledge, is too arbitrary to be permitted. In reply it' is said that smoking opium also might have been made in this country from lawfully imported crude opium; but this fact was not mentioned in the opinion nor apparently drawn to the attention of the court, and the possibility of such manufacture in this country from lawfully imported opium seems negligible. The claimed distinction is substantial enough so that we cannot take the decision as intended to cover all situations which might exist with reference to the possession of morphine; but we think the principle of the decision does reach the-facts of the present ease. The package here consisted of ten tins, each containing one ounce.
3
There was no evidence of pаrticularly careful wrapping as against the moisture of a sea voyage, and no such marks or labels indicating foreign origin as have appeared in some cases.
4
Each tin was marked “1 oz. morрhin. hydroehl,” in English letters. Considering, however, the comparatively large amount in the ten-tin package, the improbability that such amount could have been diverted from lawful manufacture in this country without discovery, the fact that very little of the morphine made in this country is of the hydrochloric form,
5
and the absence from the cans of any stamps indicating the tax payment and markings required in domestic manufacture, wе deem it a reasonable inference that this particular morphine was of foreign manufacture or packing and therefore had been unlawfully imported, and that it is not unfair to presume that any one handling it ought to draw this inference. Upon such a view of the evidence furnished by the packages themselves, the statutory inference is not unreasonable, and these defendants cannot be heаrd to say that under some circumstances it might be unconstitutional. See Hooper v. U. S. (C. C. A. 9)
We assume that no raw opium is commercially “produced” in this country. This we have supposed to be common knowledge; and the official reports and literature in connection with the subject all seem to make that assumption. The use of the word “produce” in section 1 of the Harrison Anti-Narcotic Act (38 Stat. 785) doеs not seem necessarily to imply any production of raw opium in this country at this time. The office of that word in the act would seem to be satisfied by applying it to a possible future production or by aрplying it to the various derivatives made in this country and as to which it is appropriate. But see comment by Mr. Justice Holmes in the Jin Puey Moy Case,
The judgment is affirmed.
Notes
In 1927 the imports of opium were 2,274,228 oz.; domestic sales as opium by importers and manufacturers 934,250 oz.; and domestic sales as morphine (including morphine compounds) 2,686,665 oz. (from Report of Com’r of Prohibition, 1928).
These tins were made a part of the bill of exceptions, but retаined by the Narcotic Agent. He has now emptied one can, retaining its contents, and filed the empty can as an exhibit with the clerk. All the cans were identical.
See Treasury Department Report “Traffic in Opium, etc.,” for fiscal year 1S98, pp. 10-20, and pp. 27-32.
Same report, p. 11.