280 F. 115 | 5th Cir. | 1922
The defendant Swartz was found guilty under two counts of an indictment; the first charging a failure to register and having unlawfully in possession 25 grammes of morphine, and the second a like failure to register and an unlawful possession of a certain amount of cocaine. The defendant Chung was found guilty under an indictment which charged him with not having registered as provided by the Harrison Narcotic Act (Comp. St. §§ 62S7g-6287q), and not being authorized to produce, import, manufacture, compound, deal in, dispense, sell, or give away opium or their salts, and having unlawfully in his possession and under his control 10 grains of opium. Neither indictment charged either defendant with doing or intending to 'do any of the things specified in the act as requiring a license for their lawful performance.
It is insisted in this court that neither indictment, nor count, states an offense against the United States; .that the Harrison Narcotic Act is a revenue statute, and the offense consists in the failure of those to register and pay the tax, who produce, import, manufacture, compound, deal in, dispense, sell, or give away opium, etc., as specified in the first section of the act (section 6287g); that the offense denounced in the eighth section is the possession by those who are required to register, and not possession generally by all persons; and that an indictment which charges unlawful possession by one not registered, without alleging that he was one of the class required to register, charges no ' offense against the United States.
We think that the objection is good and that the indictments are fatally defective. The offense is not the possession of the morphine or cocaine, but the possession for some of the purposes for which registration is required, without having registered and paid the tax; and while proof of possession,- under section 8 of the act (section 6287n), casts the burden of proojf upon the defendant (Gee Woe v. United States, 250 Fed. 428, 162 C. C. A. 498), the indictment charges no violation of the act, unless it charges that the possession was for a purpose for which registration is required, and that the accused had not registered. This we understand to be the decision of the United States Supreme Court in the case of United States v. Jin Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854. To this effect are the following cases: United States v. Bernstein (D.
'The judgment of the District Court in each case is therefore reversed.
