1. Two sales of morphine not in or from the original stamped
package, the second having been initiated after the first was
complete,
held separate and distinct offenses under § 1 of
the Narcotics Act, although buyer and seller were the same in both
cases and but little time elapsed between the end of the one
transaction and the beginning of the other. P.
284 U. S.
301.
2. Section 1 of the Narcotics Act, forbidding sale except in or
from the original stamped package, and § 2, forbidding sale not in
pursuance of a written order of the person to whom the drug is
sold, create two distinct offenses, and both are committed by a
single
Page 284 U. S. 300
sale not in or from the original stamped package and without a
written order. P.
284 U. S.
303.
3. Where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not.
P.
284 U. S.
304.
4. The penal section of the Act, "any person who violates or
fails to comply with any of the requirements of this act" shall be
punished, etc., means that each offense is subject to the penalty
prescribed. P.
284 U. S. 305.
Certiorari,
post, p. 607, to review a judgment
affirming a sentence under the Narcotics Act.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The petitioner was charged with violating provisions of the
Harrison Narcotic Act, c. 1, § 1, 38 Stat. 785, as amended by c.
18, § 1006, 40 Stat. 1057, 1131; [
Footnote 1] and c. 1, § 2, 38 Stat. 785, 786. [
Footnote 2] The indictment
Page 284 U. S. 301
contained five counts. The jury returned a verdict against
petitioner upon the second, third, and fifth counts only. Each of
these counts charged a sale of morphine hydrochloride to the same
purchaser. The second count charged a sale on a specified day of
ten grains of the drug not in or from the original stamped package;
the third count charged a sale on the following day of eight grains
of the drug not in or from the original stamped package; the fifth
count charged the latter sale also as having been made not in
pursuance of a written order of the purchaser as required by the
statute. The court sentenced petitioner to five years' imprisonment
and a fine of $2,000 upon each count, the terms of imprisonment to
run consecutively; and this judgment was affirmed on appeal. 50
F.(2d) 795.
The principal contentions here made by petitioner are as
follows: (1) that, upon the facts, the two sales charged in the
second and third counts as having been made to the same person
constitute a single offense; and (2) that the sale charged in the
third count as having been made not from the original stamped
package, and the same sale charged in the fifth count as having
been made not in pursuance of a written order of the purchaser,
constitute but one offense, for which only a single penalty
lawfully may be imposed.
One. The sales charged in the second and third counts,
although made to the same person, were distinct and separate sales
made at different times. It appears from the evidence that, shortly
after delivery of the drug which was the subject of the first sale,
the purchaser paid for an additional quantity, which was delivered
the next day. But the first sale had been consummated, and the
payment for the additional drug, however closely following, was the
initiation of a separate and distinct sale completed by its
delivery.
The contention on behalf of petitioner is that these two sales,
having been made to the same purchaser and
Page 284 U. S. 302
following each other, with no substantial interval of time
between the delivery of the drug in the first transaction and the
payment for the second quantity sold, constitute a single
continuing offense. The contention is unsound. The distinction
between the transactions here involved and an offense continuous in
its character is well settled, as was pointed out by this court in
the case of
In re Snow, 120 U. S. 274.
There, it was held that the offense of cohabiting with more than
one woman, created by the Act of March 22, 1882, c. 47, 22 Stat. 31
was a continuous offense, and was committed, in the sense of the
statute, where there was a living or dwelling together as husband
and wife. The court said (pp.
120 U. S. 281,
120 U. S.
286):
"It is, inherently, a continuous offense, having duration, and
not an offense consisting of an isolated act. . . ."
"
* * * *"
"A distinction is laid down in adjudged cases and in text
writers between an offense continuous in its character, like the
one at bar, and a case where the statute is aimed at an offense
that can be committed
uno ictu."
The Narcotic Act does not create the offense of engaging in the
business of selling the forbidden drugs, but penalizes any sale
made in the absence of either of the qualifying requirements set
forth. Each of several successive sales constitutes a distinct
offense, however closely they may follow each other. The
distinction stated by Mr. Wharton is that,
"when the impulse is single, but one indictment lies, no matter
how long the action may continue. If successive impulses are
separately given, even though all unite in swelling a common stream
of action, separate indictments lie."
Wharton's Criminal Law (11th Ed.) § 34. Or, as stated in note 3
to that section,
"The test is whether the individual acts are prohibited, or the
course of action which they constitute. If the former, then each
act is punishable separately. . . . If the latter, there can be but
one penalty. "
Page 284 U. S. 303
In the present case, the first transaction, resulting in a sale,
had come to an end. The next sale was not the result of the
original impulse, but of a fresh one -- that is to say, of a new
bargain. The question is controlled, not by the
Snow case,
but by such cases as that of
Ebeling v. Morgan,
237 U. S. 625.
There, the accused was convicted under several counts of a willful
tearing, etc., of mail bags with intent to rob. The court (p.
237 U. S. 628)
stated the question to be
"whether one who, in the same transaction, tears or cuts
successively mail bags of the United States used in conveyance of
the mails, with intent to rob or steal any such mail, is guilty of
a single offense, or of additional offenses because of each
successive cutting with the criminal intent charged."
Answering this question, the court, after quoting the statute, §
189, Criminal Code, (U.S. C. title 18, § 312) said (p.
237 U. S.
629):
"These words plainly indicate that it was the intention of the
lawmakers to protect each and every mail bag from felonious injury
and mutilation. Whenever any one mail bag is thus torn, cut, or
injured, the offense is complete. Although the transaction of
cutting the mail bags was, in a sense, continuous, the complete
statutory offense was committed every time a mail bag was cut in
the manner described, with the intent charged. The offense as to
each separate bag was complete when that bag was cut, irrespective
of any attack upon, or mutilation of, any other bag."
See also Ex parte Henry, 123 U.
S. 372,
123 U. S. 374;
Ex parte De Bara, 179 U. S. 316,
179 U. S. 320;
Badders v. United States, 240 U.
S. 391,
240 U. S. 394;
Wilkes v.
Dinsman, 7 How. 89,
48 U. S. 127;
United States v. Daugherty, 269 U.
S. 360;
Queen v. Scott, 4 Best & S. (Q.B.)
368, 373.
Two. Section 1 of the Narcotic Act creates the offense
of selling any of the forbidden drugs except in or from the
original stamped package; and § 2 creates the offense of selling
any of such drugs not in pursuance of a written
Page 284 U. S. 304
order of the person to whom the drug is sold. Thus, upon the
face of the statute, two distinct offenses are created. Here, there
was but one sale, and the question is whether, both sections being
violated by the same act, the accused committed two offenses, or
only one.
The statute is not aimed at sales of the forbidden drugs
qua sales, a matter entirely beyond the authority of
Congress, but at sales of such drugs in violation of the
requirements set forth in §§ 1 and 2, enacted as aids to the
enforcement of the stamp tax imposed by the act.
See Alston v.
United States, 274 U. S. 289,
274 U. S. 294;
Nigro v. United States, 276 U. S. 332,
276 U. S. 341,
276 U. S. 345,
276 U. S.
351.
Each of the offenses created requires proof of a different
element. The applicable rule is that, where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are
two offenses or only one is whether each provision requires proof
of an additional fact which the other does not.
Gavieres v.
United States, 220 U. S. 338,
220 U. S. 342,
and authorities cited. In that case, this court quoted from and
adopted the language of the Supreme Court of Massachusetts in
Morey v. Commonwealth, 108 Mass. 433:
"A single act may be an offense against two statutes; and if
each statute requires proof of an additional fact which the other
does not, an acquittal or conviction under either statute does not
exempt the defendant from prosecution and punishment under the
other."
Compare Albrecht v. United States, 273 U. S.
1,
273 U. S. 11-12
and cases there cited. Applying the test, we must conclude that
here, although both sections were violated by the one sale, two
offenses were committed.
The case of
Ballerini v. Aderholt, 44 F.2d 352, is not
in harmony with these views, and is disapproved.
Three. It is not necessary to discuss the additional
assignments of error in respect of cross-examination, admission of
testimony, statements made by the district
Page 284 U. S. 305
attorney to the jury claimed to be prejudicial, and instructions
of the court. These matters were properly disposed of by the court
below. Nor is there merit in the contention that the language of
the penal section of the Narcotic Act, "any person who violates or
fails to comply with any of the requirements of this act," shall be
punished, etc., is to be construed as imposing a single punishment
for a violation of the distinct requirements of §§ 1 and 2 when
accomplished by one and the same sale. The plain meaning of the
provision is that each offense is subject to the penalty
prescribed; and, if that be too harsh, the remedy must be afforded
by act of Congress, not by judicial legislation under the guise of
construction. Under the circumstances, so far as disclosed, it is
true that the imposition of the full penalty of fine and
imprisonment upon each count seems unduly severe; but there may
have been other facts and circumstances before the trial court
properly influencing the extent of the punishment. In any event,
the matter was one for that court, with whose judgment there is no
warrant for interference on our part.
Judgment affirmed.
[
Footnote 1]
"It shall be unlawful for any person to purchase, sell,
dispense, or distribute any of the aforesaid drugs [opium and other
narcotics] except in the original stamped package or from the
original stamped package; and the absence of appropriate tax-paid
stamps from any of the aforesaid drugs shall be prima facie
evidence of a violation of this section by the person in whose
possession same may be found. . . ."
[
Footnote 2]
"It shall be unlawful for any person to sell, barter, exchange,
or give away any of the drugs specified in section 691 of this
title, except in pursuance of a written order of the person to whom
such article is sold, bartered, exchanged, or given on a form to be
issued in blank for that purpose by the Commissioner of Internal
Revenue."