250 F. 694 | 8th Cir. | 1918
Plaintiffs in error, not being citizens of the 'United States, complain oí a conviction and sentence for manufacturing opium for smoking purposes by preparing opium suitable for smoking purposes from crude gum opium. 38 Stiff. 277. Their counsel moved that judgment he arrested on the verdict for the following reasons: (at That the indictment did not state facts sufficient to con-stituLe an offense; (b) that the statute provides no penalty for its violation ; (c) that the statute is void under the Constitution of the United States.
Section 1 of the statute provides that no person who is not a citizen of the United States shall engage in the manufacture of opium for smoking purposes. The indictment sufficiently charges this offense in the language of the statute, and goes further, and charges what plaintiffs in error did to constitute them manufacturers. Section 5 (Comp. 'St. 1916, § 6287e) provides that for each and every violation of the preceding sections of the law imprisonment for not less than five years shall be imposed. It is contended that, as there is no maximum punishment, the statute leaves the extent of the same to the discretion of the court, and, adopting figures familiar to the present day, counsel urges that one. who manufactures a pipeful of smoking opium may be sentenced under the statute to life imprisonment and fined a billion dollars or more, which would not only be a violation of the Eighth Amendment to the Constitution of the United States, prohibiting the imposition of excessive fine:; and the infliction of cruel and unusual punishments, but the statute would tiiereby be rendered void for leaving the extent of the punishment entirely to the discretion of the court.
Complaint is made in regard to the charge of the court as to evi
The trial court on its own motion charged the jury, in the language of the statute, that:
‘•Every person wlio prepares opium suitable for smoking purposes from crude gum opium, or from any pjpparaiion thereof, or from the residue of smoked or partially smolccd opium, commonly known as yen shoe, or from any mixture of the above, or any of them, shall be regarded as a manufacturer of smoking opium within the meaning of this act.”
Counsel wished the court to charge that a single act of preparing opium suitable for smoking would not make a person who prepared the opium a manufacturer, as, for instance, the preparation of smoking opium for a single .smoke by the one who prepared it. .But the request and contention of counsel was not applicable to the evidence. There was no evidence of a single act of preparation. The evidence tended to show that plaintiffs in error were engaged in the business of manufacturing smoking opium. At the close of all the evidence counsel for plaintiffs in error requested the court to charge the jury to return a verdict of not guilty. We have read the evidence in. the record and are satisfied that there was sufficient evidence to go to the jury as to whether the plaintiffs in error were guilty of the crime charged in the second count of the indictment, upon which they were convicted.
The evidence showed that plaintiffs iii error were members of the firm of Quong Au Long Company; that on the 28th day of March, 1914, and for several years prior thereto, they had been engaged in business under said firm, name at No. 17 South Eighth street, St. Louis, Mo., occupying and controlling a three-story building, and conducting therein a small general store for the sale of Chinese merchandise; that, on the day above mentioned, L. G. Nutt, revenue agent in charge at St. Louis, having received information that Lee Mow Lin was manufacturing smoking opium, proceeded with Mr. Fowle and Mr. Langley, of the Revenue Service, and Mr. Bradley, of the Customs Service, to said premises for the purpose of making an investigation. Upon their arrival there they found Lee Mow Lin behind the counter in the store engaged in selling smoking opium to another Chinaman. The officers then proceeded to make an examination of the premises, and in doing so found about four pounds of smoking opium in various containers, about one pound of crude gum opium, and more than two gallons of crude gum opium being soaked or macerated; maceration being the first step in the manufacture of smoking opium. They also found a four-gallon jar, a gallon jar, and a galvanized bucket, all of which had contained crude gum opium in maceration, and gave
There was also found in the kitchen a cook stove and two large kettles suitable for cooking the solution after maceration, and quite a number of other small tin boxes or tin cans in which smoking opium is put up when sold at'retail. There was also found some yen shee, being the ash or residue of smoking opium after the same has been smoked, found on the premises. The evidence showed that smoking opium is manufactured from crude gum opium, or from a mixture of crude gum opium and yen shee, and a low grade from yen shee alone. It showed, also, that the first stage of manufacture is to cut the gum opium in small parcels and soak and macerate it for several hours; that it is then strained, and the solution is cooked to the consistency of thick heavy molasses, and this is smoking opium.
The evidence showed that the plaintiffs in error were not citizens of the United States; that the Quong Au Long Company was engaged in handling and selling smoking opium. A considerable amount of the manufactured product was found, and also a quantity of crude gum opium, most of which was already in the first stage of the manufacture of smoking opium. It showed implements and utensils suitable for manufacture of smoking opium were at the store. It showed that -all of the smoking opium found on hand, with the exception of one small can, which was unopened and had been imported, contained a morphine content ranging from 16.5 per cent, to 19.45 per cent. It showed that imported smoking opium is of a much smaller morphine content than the smoking opium manufactured in this country; that the smoking opium found on the premises mentioned with the exception of the small can which was unopened was of domestic manufacture.
We presume it would be rare that parties could be found in the actual manufacture of smoking opium; therefore we are of the opinion there was sufficient evidence introduced from which the jury would be authorized to find that the plaintiffs in error were guilty of the charge made against them.
There being no reversible error in the record, the judgment is affirmed.