Guilbeau v. United States

BRYAN, Circuit Judge.

The defendant, Armide Guilbeau, was convicted upon one count of an indictment, under section 2 of the Harrison Narcotic Law (38 Stat. 785 [Comp. St. § 6287h]), charging her with the unlawful sale of “certain derivatives and salts of opium, to wit, four grains of morphine sulphate,” upon evidence of an unlawful sale by her of four grains of morphine hydrochloride, The trial court refused to direct a verdict of acquittal, and charged the jury that the variance between the allegation and the proof was immaterial. These rulings are assigned as error.

We are of opinion that the variance was material. Morphine is a derivative of opium. According to the evidence, morphine sulphate is a compound which contains morphine and sulphuric acid, while morphine hydrochloride is a compound which contains morphine and a radical combined with a chloride. The description of one of the compounds in which morphine is a constituent element excludes all other compounds, and must be proved as laid, even though the indictment might have used more general terms. United States v. Hardyman, 13 Pet. 176, 10 L. Ed. 113; Naftzger v. United States, 200 Fed. 494, 118 C. C. A. 598; 1 Bishop’s New Criminal Procedure, § 488; 1 Wharton’s Criminal Evidence, § 121; Fulford v. State, 50 Ga. 591; Robinson v. State, 60 Tex. Cr. R. 592, 132 S. W. 944. The averment is one of substance, Jin Fuey Moy v. United States, 254 U. S. 189, 41 Sup. Ct. 98, 65 L. Ed. 214; and the variance is not cured by the Act of February 26, 1919, 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, § 1246), Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849.

The defendant was put on notice by the indictment that the charge against her was the unlawful sale of a particular compound, and a conviction cannot be sustained upon proof of a different compound than that charged. If the rule against a material variance be considered technical, yet it is sound, because it is based upon the constitutional guaranty that an accused shall be informed of the nature and cause of the accusation against him, and only by adhering to it can the danger of misleading a defendant be avoided.

Evidence was admitted over objection to the effect that the defendant had made other sales of morphine not charged in the indictment, in violation of the statute, with reference to which the court charged the jury:

“That evidence was introduced, or permitted to be introduced, purely for the purpose of showing that there might be a business of selling morphine unlawfully or a system of doing business; so that, if you believe that these other sales were made, you might be more inclined to believe that the sale charged in the indictment had been made; but there can be no conviction predicated on those sales not shown in the indictment, even if you believe they had been made. That is merely evidence.introduced by the government to show a system or to show a course of business.”

*733 This ruling and charge are also assigned as error. In our opinion, this evidence should not have been admitted, and the charge was erroneous ; and we deem it proper to say so, inasmuch as the statute limitations has not run against the offense sought to be proved, and a new indictment may be found charging the defendant with the unlawful sale of morphine hydrochloride. The general rule is that evidence that an accused has committed another crime, wholly independent of that for which he is on trial, is irrelevant and inadmissible. 16 Corpus Juris, 586. There is a well-recognized exception where motive or intent is involved. But that exception does not apply in this case, because the motive or intent with which one violates the Harrison Narcotic Law is wholly immaterial. The charge authorized the jury to consider the evidence of other sales by the defendant, for the purpose of showing a system of doing business, so that, if the jury believed that other sales had been made, they “might be more inclined to believe that the sale charged in the indictment had been made.” But a.system of criminal action is not admissible to prove an independent isolated offense, but only to show conspiracy, motive or intent, or to prove a charge which consists of a series of acts. 16 Corpus Juris, 591; 1 Wharton’s Criminal Evidence, 59.

The judgment is reversed.