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the leasehold property to Swetland by the trustee, Sheppard, be vacated and set aside.

As the agreement which complainant made with Ellis stands unimpeached upon the facts alleged, the complainant is not entitled to the relief he asks as respects his claim for $9,250 and the claim for $20,000.

The complaint was properly dismissed as to the Commercial Trust Company. The bill asks no relief as against it and charges it with no wrong.

The complaint was properly dismissed as to defendant Sheppard, who was and is an officer of the court, and in what he has done has carried out the orders of the court.

The complaint, for reasons already stated, was properly dismissed as to defendant Swetland.

All three of the above-named defendants are entitled to their costs in this court.

The action of the court below in remanding the cause as to defendant Ellis to the law side was a proper disposition to make of the allegations affecting him.

Decree affirmed.

WALLACE v. UNITED STATES.

(Circuit Court of Appeals, Seventh Circuit.

April 10, 1317.)

No. 2336.

1 CONSPIRACY O 43(6)—Poisons mt-INDICTMENT-SALE OF OPIUM.

Harrison Drug Act Dec. 17, 1914, c. 1, § 1, 38 Stat. 785 (Comp. St. 1916, $ 62878), requires any person proposing to handle opium or coca leaves, or any compound or derivatives thereof, to 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, defining the place of business as the office, or, if none, then the residence, of such person. An indictment returned in the First district of Illinois charged that accused and another conspired to violate the act, and that accused aided and abetted such person, who was not registered with, and had not paid the tax to, the collector of internal revenue for that district, to dispose of the drugs. Held, that the act does not provide that one intending to deal in such drugs shall register at his place of business, but that he shall register at the place where such business is to be carried on, the statement of such person's place of business being for information; and hence the indictment was not defective in failing to allege that such person had not registered at his place of business, it alleging that he had not

registered at the place where the drugs were disposed of. 2. CONSPIRACY W43(6)—INDICTMENT AND INFORMATION-SUFFICIENCY.

An indictment charging that accused and another, who was not registered in accordance with Harrison Drug Act, entered into, at Chicago, a conspiracy whereby accused's coconspirator was to dispose of drugs in violation of the act, and which alleged that he did dispose of such drugs, is sufficient to charge the conspiracy to sell such drugs within the First district of Illinois, within which accused's coconspirator was alleged not

to have been registered; Chicago being in that district. 3. Poisons l_SALE OF OPIUM-INDICTMENT-EXEMPTIONS.

Under the Harrison Drug Act, which excepts certain persons, and provides in section 8 (Comp. St. 1916, 8 6287n) that it shall not be necessary

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

to negative any such exemptions in any complaint, information, or indictment, or writ or other proceeding, laid or brought under the act, an indictment charging a violation of the act need not negative the exemptions contained therein; the provisions of section 8 being applicable to all exemptions contained in the act, and such exemptions being separate from

the other provisions of the act. 4. CONSPIRACY 43(4)—IXDICTMENT-SUFFICIENCY.

An indictment, charging that accused conspired with another to violate the Ilarrison Drug Act, alleged that accused's coconspirator, not being registered, unlawfully, knowingly, and feloniously did sell and dispose of prohibited drugs, and that accused unlawfully and knowingly did aid his coconspirator, sufficiently avers accused's knowledge of the unlawful

ness of his coconspirator's act. 5. CRIMINAL LAW 678(1)--PROSECUTION-ELECTION.

Under Rev. St. § 1024 (Comp. St. 1916, $ 1690), declaring that when there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes which may be properly joined, instead of having several indictments, the whole may be joined in one indictment in separate counts, the government cannot, in a prosecution for conspiring to violate and for violating the Harrison Drys Act, be required at the close of its case to elect on which of the acts conviction would be sought; the several charges properly being joined in

one indictment. 6. CBIWINAL LAW Cw564(3)—VENUE-EVIDENCE.

Venue, like any other fact, may be shown by evidence, direct, indirect,

or circumstantial. 7. CRIMINAL LAW Om561(1)→TRIAL-VENUE.

In a prosecution for conspiring to violate and violating the Harrison Drug Act, evidence held sufficient to establish the venue in the district

laid in the indietment. 8. CONSPIRACY OM 45-VIOLATION OF STATUTE-EVIDENCE-ADMISSIBILITY.

Where accused was charged with conspiring with another, who was unregistered, to violate and violating the Harrison Drug Act, evidence that accused's coconspirator had previously been prosecuted for violating the state drug acts, and that accused assisted him in obtaining bail and preparing his defense, is admissible to show the relations between the parties and the purposes of their acts, shown to have occurred since the

Harrison Act went into effect. 9. CRIMINAL LAW Cm 507(1)—PoisonS m 4-EVIDENCE-ACCOMPLICES-Pos

SESSION OF DRUGS.

Under the Harrison Drug Act, section 1 of which requires persons proposing to handle opium or coca leaves or their derivatives to register and pay the tax, and section 8 of which penalizes the possession of drugs by persons not having registered and paid the tax, one having possession of such drugs for his own use does not fall within the inhibition of the act, and hence a witness against accused, who purchased such drugs from accused's coconspirator, cannot be deemed guilty of an offense and an accomplice, so as to warrant a charge that the jury should scrutinize his

testimony as that of an accomplice. 10. CRIMINAL LAW Om780(1)--TRIAL-ACCOMPLICE'S TESTIMONY.

There is no absolute rule of law preventing convictions on the testimony of accomplices, if juries believe them, and while it is better practice, where such testimony is relied on, for the court to direct attention to the complicity of witnesses, error cannot be predicated on refusal to so charge

the jury, 11. CRIMINAL LAW 510_EVIDENCE-ACCOMPLICE'S TESTIMONY,

A conviction may be had on the testimony of accomplices alone. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

12. CRIMINAL LAW C 658-TRIAL-CONDUCT OF COURT.

In a criminal prosecution, where a witness, who had previously made contradictory statements under oath, on trial denied knowledge of facts tending to incriminate accused, the court was warranted in committing such witness to the custody of the marshal, and it was proper to allow the witness to subsequently change his testimony; the court cautioning

the jury to examine carefully the conflicting stories. 13. CRIMINAL LAW 351(8)-EVIDENCE-ADMISSIBILITY.

A witness, who had previously made statements under oath connecting accused with the offense on trial, first denied knowledge of any such facts, but, having been committed to the custody of the marshal, testified to them, and that accused had induced him to deny such knowledge. Held, that the testimony tending to implicate accused in the suppression of the

evidence was admissible, and could be considered by the jury. 14. POISONS COFFENSES—EVIDENCE-SUFFICIENCY.

In a prosecution for violating the Harrison Drug Act, evidence held

sufficient to sustain the conviction. 15. CRIMINAL LAW Om1147—APPEAL-DISCRETION OF COURT-PUNISAMENT.

The appellate court cannot substitute its own discretion for that of the District Court, and, though believing that lighter punishments than those imposed for violation of the Harrison Drug Act would have vindicated the law, the punishment imposed cannot be treated as excessive.

In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.

William E. Wallace was convicted of a violation of the Harrison Drug Act, and he brings error. Affirmed.

Plaintiff in error was convicted under an indictment charging violation of the so-called Harrison Drug Act passed December 17, 1914, and by its terms effective March 1, 1915. Of the ten counts of the indictment, Nos. 1 and 2 charge plaintiff in error Wallace and one Davis with conspiracy to commit an offense against the United States by violating said act; count 1 charging the intended offense to be possession of such drugs by Davis, a person who sold and gave away the drugs, and not being registered with, and not having paid the tax provided in the act to, the collector of internal revenue for the First district of Illinois, and count 2 an intended violation of the act through sales of such drugs to be made by Davis, he not being so registered or having paid the tax. Counts 3 and 5 charge Davis with violating the act by unlawfully having in his possession the drugs, and counts 4, 5, 6, 7, 9, and 10 charge violation by Davis in unlawfully selling or giving away the drug, and in counts 3 to 10 Wallace is charged with having aided and abetted Davis in doing the unlawful acts charged against Davis in these counts, Davis not being so registered and not having paid the tax.

Wallace alone was tried, Davis having pleaded guilty. The jury found Wallace guilty under counts 2, 6, 9, and 10, and not guilty under the others. Wallace was sentenced to two years' imprisonment and $10,000 fine under count 2, and 5 years under each of counts 6, 9, and 10, the several terms of imprisonment to be concurrently served.

Section 1 of the act, which it is charged the defendants violated and conspired to violate, is in its material parts as follows: "That on and after the first day of March, nineteen hundred and fifteen, 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: Provided, that the office, or if none, then the residence of any person shall be considered for the purposes of this act to be his place of business. At the time of such registry and on or before

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

*

the first day of July, annually thereafter, every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away any of the aforesaid drugs shall pay to the said collector a special tax at the rate of $1 per annum." (Certain persons are exempted.) “It shall be unlawful for any person required to register under the terms of this act to produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away any of the aforesaid drugs without having registered and paid the special tax provided for in this section.

That the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall make all needful rules and regulations for carrying the provisions of this act into effect.”

Sections 2, 3, and 5 make detailed provision for handling the drugs by persons registered, for making record of drugs received, and for sale or barter of same only in pursuance of a written order on blank forms for which provision is made, and for preservation of such orders and the accessibility thereof to inspection by officials of the Treasury Department, as well as to state and municipal officials who are charged with enforcement of laws or ordinances thereof regulating sale and distribution of such drugs. Section 4 makes it unlawful for any person not registered to ship or carry any of these drugs from one state to another, certain exceptions being enumerated. Section 9 prescribes that any person violating the act shall be fined not more than $2,000, or imprisoned not more than 5 years, or both.

Numerous errors are alleged. Those which we deem important will be stated with the discussion of them in the opinion.

William A. Morrow, of Chicago, Ill., for plaintiff in error.

Charles F. Clyne and Benjamin P. Epstein, both of Chicago, Ill., for the United States.

Before KOHLSAAT, MACK, and ALSCHULER, Circuit Judges.

ALSCHULER, Circuit Judge (after stating the facts as above). [1] 1. As to each of the counts in the indictment it is contended that because it is not alleged that Davis had his office or residence in the first internal revenue district of Illinois and the allegation of his nonregistry and nonpayment of the tax is only as to said First district, the indictment does not sufficiently allege Davis' nonregistry and nonpayment of the tax. The argument is that, for anything to the contrary appearing in the indictment, Davis might have been registered in some other district, and would therefore have had the right under the act to handle the drugs within the First district of Illinois, without registering with, or paying the tax to, the collector of internal revenue therein. Does registry and payment of the tax in one internal revenue district of the United States entitle the registered person under such registry alone to handle the drugs in all other revenue districts in the United States as he may do in the district of his registry?

Section 1 requires a person proposing to handle the drugs to 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 it defines the place of business to be "the office, or if none, then the residence” of the person. Distinction is thus made in the act between the "place of business" and the "place where such business is to be carried on." The act defines the first in prescribing that it shall be considered the office, if any, and, if none, then the residence, of the applicant for registry. But evidently the place where the business is to be carried on may be anywhere in the United States,

and

may be more than one place, as indicated by the use of the words "place" or “places.” But the act does not provide that his place of business-i. e., his office or residence-shall be the place where he is required to register. It prescribes in effect that he shall state his place of business (so defined to be his office or residence) by way of information, doubtless for the more certain identification of the applicant for registry and to facilitate official supervision, and tracing of the drugs. For instance, if his office (his place of business, if any, and, if none, his residence) is in New York, unless he intends to carry on the business in New York, he need not register there; but if he desires to carry on the business of selling the drugs in the First district of Illinois, he must register in the First district, and when registering there he registers his place of business as New York, and will then further register the place or places wherein he expects to transact business in Chicago, and in such other places, if any, in which he intends to handle the drugs. But so registering these facts in the First district of Illinois does not entitle him to deal in such drugs in the various places other than said First district, which he may thus enumerate. In order to make sales in any of the other districts which may be so enumerated, the applicant must there register and pay his tax in such district, wholly regardless of whether within any district in which he registers he actually has an office or residence. If, therefore, without registering and paying tax in the First district of Illinois, Davis therein actually dealt in, sold, or gave away the drugs, he was carrying on such business in said First district contrary to the provisions of the act, even though he might have registered and paid tax in some other district. It follows that, with respect to the allegations of nonregistry and nonpayment of the tax, the indictment is sufficient.

[2] 2. It is urged that the conspiracy alleged in count 2 fails to charge a conspiracy to unlawfully sell the drugs within the First district of Illinois, within which alone Davis' nonregistry is alleged. The count charges the conspiracy to have been formed at Chicago, which is within such First district, and that in pursuance of the conspiracy Davis did deliver, sell, and give away drugs at Chicago to the various persons alleged in the different overt acts set forth in the count. Under the reasoning and conclusion of the Supreme Court in Hyde v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614, we hold that count 2 sufficiently charges a conspiracy to commit at Chicago the alleged offense.

13] 3. Another objection urged to the indictment is that the counts do not negative the exemptions from the operation of the act as therein created in favor of certain persons. The exemptions referred to consist in the enumeration of certain classes of persons who are excluded from the general prohibition of the act, which the act clearly and completely sets forth wholly apart from the specified exemptions. The rule applicable to such cases is stated by the Supreme Court in United States v. Cook, 17 Wall. 168, 173, 21 L. Ed. 538, in these words:

“If the language of the section defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the

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