296 F. 911 | 5th Cir. | 1924
This is a prosecution under section 1 of the Harrison Narcotic Haw (38 Stat. 785), as amended by Revenue Act Feb. 24, 1919, § 1006 (40 Stat. 1130 [Comp. St. Ann. Supp. 1919, § 6287g]). The indictment charges that the defendant Alge Howell —
“being then and there a person engaged in dealing m compounds, manufactures, salts, derivatives, and preparations of opium and coca leaves, and as such being required by the laws of the United States to register as such dealer in the internal revenue collection 'district of Louisiana, he, the said Alge Howell, alias Albert Powell, did then and there unlawfully, willfully, knowingly, and feloniously deal in certain compounds, manufactures, sálts, and derivatives of opium and coca leaves, to wit, morphine and cocaine, did then and there have in his possession two hundred and forty grains morphine and five grains of cocaine, which said quantity of morphine and cocaine did not then and there have affixed thereto appropriate tax-paid stamps as required by the act of Congress approved December 17, 1914, as amended by sections 1006, 1007 and 1008 of the Eevenue Act of Congress approved February 24, 1919, contrary,” etc.
Several government agents applied to the defendant for permission to enter his home, and the defendant invited them to come in. They began to make a search, and in doing so came to a room occupied by defendant’s wife. The defendant requested his wife to open the door, which she did. Having thus gained admission, the officers found two bottles of morphine, which were introduced in evidence over defendant’s objection that the search was unlawful. The officers had no search warrant.
The defendant was convicted as charged, and on this writ of error contends: (1) That the indictment is bad for duplicity, in that it seeks to charge a failure to register and a dealing in narcotics without first paying the special tax required of dealers, and also that the defendant dealt in narcotics upon which the internal revenue tax had not been paid, and which did not have tax-paid stamps attached to the original package; and (2) that the court erred in admitting in evidence the two bottles of morphine found upon defendant’s premises, on the ground that the officers who found them were not armed with a warrant, and that consequently the search was illegal and in violation of defendant’s constitutional rights.
1. Section 1 of the act under consideration, among other things, requires every person who deals in opium or coca leaves or any derivative thereof to register with the collector of internal revenue and to pay a special tax. It also levies an internal revenue tax upon opium and coca leaves and their derivatives. It is made unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs, except in or from the original stamped package. The absence of tax-paid stamps from any such package is prima facie evidence of a violation of the section. It thus appears that it is an offense for a dealer to fail to register and to pay the special tax, and that it is another and separate offense for any person to purchase or sell derivatives of opium or coca leaves, such as morphine and cocaine, except in or from the packages to which tax-paid stamps are attached. '
Each of the offenses above named should be charged in séparate counts of an indictment, because they are separate. That part of the indictment which charges that the defendant as a dealer was required
2. The two bottles of morphine were properly admitted in evidence, because the defendant consented to the search of his premises. The sufficiency of the evidence upon the issue whether the defendant was a dealer is not presented by any exception or assignment of error, and therefore is not considered.
The judgment is affirmed.