Opinion · Court of Appeals for the Ninth Circuit

Sam Wong v. United States

2 F.2d 969

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1925-01-05
Topic
general

HUNT, Circuit Judge. Defendant was convicted under three counts of an indictment charging' in count 1 that he purchased, sold, dispensed, and distributed certain narcotics; in count 2 that he, being a person required to register under the terms of the acts of Congress, did have in his possession with intent to sell certain narcotics; and in the third count that he feloniously and fraudulently did receive, conceal, buy, sell, and facilitate the transportation, concealment, and distribution after importation of certain described derivative of opium, which defendant knew had been imported contrary to law. He was sentenced to ten' years in the penitentiary. The assignments of error present the question whether the indictment states a public offense. We can dismiss consideration of count 2, as counsel for tho government concede that under our decision in Johnson v.

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SAM WONG v. UNITED STATES,2 F.2d 969(9th Cir. 1925)
SAM WONG v. UNITED STATES.
No. 4296.
Circuit Court of Appeals, Ninth Circuit.
January 5, 1925.
In Error to the District Court of the United States for the Northern Division of the Northern District of California; John S. Partridge, Judge.

Sam Wong was convicted of unlawfully purchasing, selling, and distributing narcotics, and of violating the Narcotic Import and Export Act, and he brings error. Affirmed.
S. Luke Howe, of Sacramento, Cal., and Marshall B. Woodworth, of San Francisco, Cal., for plaintiff in error.

Sterling Carr, U.S. Atty., and T.J. Sheridan, Asst. U.S. Atty., both of San Francisco, Cal.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
HUNT, Circuit Judge.
Defendant was convicted under three counts of an indictment charging in count 1 that he purchased, sold, dispensed, and distributed certain narcotics; in count 2 that he, being a person required to register under the terms of the acts of Congress, did have in his possession with intent to sell certain narcotics; and in the third count that he feloniously and fraudulently did receive, conceal, buy, sell, and facilitate the transportation, concealment, and distribution after importation of certain described derivative of opium, which defendant knew had been imported contrary to law. He was sentenced to ten years in the penitentiary.

The assignments of error present the question whether the indictment states a public offense. We can dismiss consideration of count 2, as counsel for the government concede that under our decision in Johnson v. United States, 294 F. 753, that count is fatally defective. The first count, however, is clearly sufficient, for it distinctlyPage 970charges unlawful purchase, disposition, and distribution of opium not in or from the original stamped packages. It is not necessary to allege or prove that one charged with that offense is required to register. United States v. Wong Sing,260 U.S. 18, 43 S. Ct. 7, 67 L. Ed. 105; Loewenthal v. United States (C.C.A.) 274 F. 563; section 8, Act Dec. 17, 1914, 38 Stat. 785 (Comp. St. § 6287n).

The third count is also sufficient in charging a violation of the provisions of section 2, subdivision (c), of the Narcotic Import and Export Act, as amended by Act May 26, 1922, § 1, which provides that, if any person knowingly imports any narcotic drug into the United States contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of, any narcotic drug after being imported or brought in, shall, upon conviction, be punished. Camou v. United States (C.C.A.) 276 F. 120, certiorari denied258 U.S. 626, 42 S. Ct. 382, 66 L. Ed. 798; Iponmatsu Ukichi v. United States (C.C.A.) 281 F. 525, certiorari denied260 U.S. 729, 43 S. Ct. 92, 61 L. Ed. 485, 42 Stat. 596 (Comp. St. Ann. Supp. 1923, § 8801).

Reversal of the judgment, for lack of evidence to sustain the verdict, is urged; but the record discloses that officers of the law found the defendant and another Chinaman in a house on a ranch, and upon search discovered a quantity of morphine in the bedroom underneath some fruit boxes upon which was the bunk in which the Chinaman slept. They also found a lamp and a can and a jar of yen shee. After arrest the defendant admitted that he got the morphine from a Chinaman in San Francisco, that he was furnishing it to addicts who worked for him, as that was the only way he could keep the men, and that he paid them by letting them have narcotics. Under section 2, subdivision (f), of the act heretofore referred to, whenever, on trial for violation of subdivision (c), defendant is shown to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains the possession to the satisfaction of the jury. Defendant testified, but his explanation was not satisfactory to the jury.

As no exceptions were taken to the instructions of the court, and no requests for instructions were denied, objections urged to them require no consideration. Deupree v. United States,2 F.2d 44.

We find no prejudicial error, and affirm the judgment.Page 971