224 F. 278 | D. Mont. | 1915
Mutatis mutandis, the indictments charge that defendants “did willfully, knowingly, unlawfully, and fe-loniously have in her possession and under her control * * * smoking opium * * * not having theretofore registered with the collector of internal revenue * * * as required under the provisions of the act of Congress of December 17, 1914, and not having theretofore paid the special tax provided for by said mentioned act.” General demurrers are interposed.
Of the act referred to in the indictment (Acts 63d Cong. 3d Sess. c. 1), section 1 provides that “every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away opium or coca leaves or any compound, manufacture, salt, derivative, or preparation thereof, shall register with the collector of internal revenue of the district his name or style, place of business, and place or places where such business is to be carried on,” and on or before the 1st day of July annually thereafter shall pay a special tax; and also that it shall be unlawful “to produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away” any such drugs without having registered and paid the tax. Section 8 provides that it shall be unlawful for any person not registered under the act and who has not paid the tax to have in his possession any of the drugs, and also that possession of any of the drugs shall be presumptive evidence, of violation of both sections hand 8. Section 9, read in connection with section 335 of the federal Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1152 [Comp. St. 1913, § 10509]), makes any violation of the act a felony. The act, whether of police or revenue, is of good purpose. What it will accomplish is another matter.
Any person convicted of its most trivial violation — the most law-abiding druggist or physician or like person in legitimate possession of the drugs, .who inadvertently allows the annual tax to become delinquent for a day — though fined but $1, is made a felon and infamous! And this for a mere legal infraction, and not a true crime, is a consequence shockingly disproportionate to the offense, is antagonistic to sound criminal economics, and is abhorent to justice. It goes without
In the instant cases, aside from constitutional objections urged, but unnecessary to further note, defendants maintain (1) that mere consumers of the drug and in possession of same only for their'own consumption are not by the act required to register and pay the tax, and (2) that the indictments do not show that defendants are of any of the classes by the act required to register and pay the tax. The prosecution contends contra the first proposition, and that in view of section 8 aforesaid there is no' support in principle for the second.
The demurrers are sustained, the indictments dismissed, and defendants discharged.