14 F.2d 606 | 6th Cir. | 1926
The indictment in this case contained two counts. The first count charged the plaintiff in error with the unlawful purchase of narcotic drugs, which drugs, when so purchased, were not in the original stamped package, and not from the original stamped package. The second count charged plaintiff in error with the unlawful possession of these drugs, not being in packages bearing the original and appropriate canceled revenue stamps, nor in the original stamped packages. Reese pleaded guilty to both counts, and was sentenced by the court to four years’ imprisonment in United Statés penitentiary at Leavenworth, where he is now serving this sentence. • "
It is the claim of the plaintiff in error
It is also contended upon the part of the plaintiff in error thait the second count of this indictment charges no offense for the reason that the amendment to seetion 1 of the original act does not make the possession of narcotic drugs in unstamped packages, by a person not required to register and pay the special tax, an offense, but rather evidence of offenses therein defined and prohibited. This contention is sustained on authority of Bellomini v. U. S. (C. C. A.) 4 F.(2d) 104.
The question of the constitutionality of this act is settled, so far as this court is concerned, by the decision of the Supreme Court in U. S. v. Doremus, 249 U. S. 86, 39 S. Ct. 214, 63 L. Ed. 493, and Webb et al. v. U. S., 249 U. S. 96, 39 S. Ct. 217, 63 L. Ed. 497, and the constitutionality of the amendment of February 24, 1919, was sustained by the Supreme Court in U. S. v. Wong Sing, 260 U. S. 18, 43 S. Ct. 7, 67 L. Ed. 105.
There is also a suggestion that the sentence of the court is excessive. The first count of the indictment charges the defendant with the purchase of a large quantity of narcotics, and to this the defendant pleaded guilty. This court is not advised as to the facts and circumstances coming to the knowledge of the court imposing the sentence, and is therefore in no position to reverse for that reason.
It appearing that the court imposed but one sentence upon both counts, and that, in the discretion of the court, that sentence might have been imposed upon count 1, the judgment is affirmed.