P. C. Butler took, and Lee Butler then directed Hunter to go with P. C. Butler. He did so, and was driven in an automobile to the outskirts of the city, where the automobile was stopped. P. C. Butler went into a field and dug up what afterward proved to be an ounce of morphine. This was delivered to Hunter; he tore open the wrapper, opened the can, examined it, and said it was all right. They then returned to the city. Later Hunter placed his initials on the can, and it was delivered to the narcotic agent. It was produced at the trial.

The evidence showed that the can did not have any tax-paid stamp upon it, either at the time of the trial or at the time it was purchased. There was no evidence on the question whether the defendants were registered under the act, or whether they had paid the special tax provided by the act. The court charged the jury on this phase of the matter as follows:

"It would be a good defense in a case of this kind if the defendants had registered with the collector of internal revenue and paid the special tax; that is, so far as the prosecution in this case is concerned. But if there is such a defense, and the defendants desired to present it, then it would devolve upon them to introduce evidence for the purpose of showing the registration and payment of the tax. They have not done so in this case, and you will take it that no such prerequisite is undertaken or performed by the defendants."

[1] Instead of thus charging the jury, the trial court, on the record before it, should, we think, have granted the motion for a directed verdict, on the ground that the evidence was wholly insufficient to sustain the allegations of the indictment. It must be borne in mind that section 1 of the Harrison Anti-Narcotic Act, as amended by the Act of February 24, 1919, covers two separate and distinct classes of offenses: First, offenses that may be committed only by a limited class of persons, viz. persons required to register under the provisions of the act; second, offenses that may be committed by any person. The first class of offenses is defined in the clause of section 1 (which we have designated A) reading as follows:

A: "It shall be unlawful for any person required to register under the provisions of this act to import, manufacture, produce, compound, sell, deal in, dispense, distribute, administer, or give away any of the aforesaid drugs without having registered and paid the special tax as imposed by this section." (Italics ours.)

The persons required to register and pay the special tax are specified as follows:

On or before July 1 of each year every person who imports, manufactures, produces, compounds, sells, deals in, dispenses, or gives away opium or cocoa 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 pay the special taxes hereinafter provided."

The schedule of taxes is as follows:

"Importers, manufacturers, producers or compounders, $24 per annum; wholesale dealers, $12 per annum; retail dealers, $6 per annum; physicians, dentists, veterinary surgeons, and other practitioners lawfully entitled to distribute, dispense, give away, or administer any of the aforesaid drugs to patients upon whom they in the course of their professional practice are in attendance, shall pay $3 per annum."

The second class of offenses is defined in a later clause of the same section (which we have designated B) reading as follows:

B: "It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs except in the original stamped package or from the original stamped package." (Italics ours.)

In the instant case the defendants were charged with being dealers and with selling the drug without having registered or paid the tax. Dealers under the act are either wholesale dealers or retail dealers. Section 1 of the act provides:

"Every person who sells or offers for sale any of said drugs in the original stamped packages, as hereinafter provided, shall be deemed a wholesale dealer."

"Every person who sells or dispenses from original stamped packages, as hereinafter provided, shall be deemed a retail dealer."

These are the only two classes of dealers required to register and pay the special tax. Though the defendants in the instant case were indicted as dealers, the indictment did not specify whether they were wholesale or retail dealers. The evidence failed to show that they were either, because it failed to show that they sold either in or from the original packages. The evidence tended to prove that they did sell in or from unstamped packages. The defendants might, therefore, properly have been indicted under the clause, designated B above, of section 1 of the act, making it an offense for anyone to sell except in or from the original stamped package.

It is suggested that the presumption declared in section 8 of the act (Comp. St. § 6287n) helps out this situation of lack of proof. That section reads in part as follows: It shall be unlawful for any person not registered under the provisions of this act, and who has not paid the special tax provided for by this act, to have in his possession or under his control any of the aforesaid drugs; and such possession or control shall be presumptive evidence of a violation of this section, and also of a violation of the provisions of section one of this act."

But this provision of section 8 has reference only to persons who are required to register as provided in section 1 (United States v. Jin Fuey Moy, 241 U. S. 394, 36 S. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854; Lamento v. United States, 4 F. (2d) 901 [C. C. A. 8]); and section 1 requires those persons only to register who are manufacturers, etc., or dealers; and dealers are only those persons who sell in or from original packages. As there was no proof that defendants belonged to the class of persons specified in section 1, the presumption had no application to them. The presumption, therefore, of section 8 does not help out the situation.

66

It is further suggested that the presumption declared in section 1 supplies the necessary evidence. That clause reads as follows: 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."

This presumption in section 1 applies only to the penal provision which we have designated B, and has no application to the penal provision of section 1 which we have designated A. If this were not so, then the presumption would be irrational and void, for it would declare that possession by a person of unstamped drugs was prima facie evidence that he was a dealer in stamped drugs; a conclusion at once illogical and unreason

The question of the correct analysis and construction of the above-quoted clauses of section 1 of the Harrison Anti-Narcotic Act has been exhaustively discussed by Judge Phillips in the opinion of this court in the recent case of O'Neill v. United States, 19 F. (2d) 322. The ruling in that case is controlling here.

[2] It has been suggested in the instant case that the allegations in the indictment that defendants were dealers, but had not been registered and had not paid the special tax, might be rejected as surplusage. We think this cannot be done, for the reason that a particular offense was charged in the indictment, and those allegations were a necessary part of the description of that particular offense, and the rule is that, where words are employed in an indictment which are descriptive of the identity of that which is legally essential to the charge in the indictment, such words cannot be stricken out as surplusage. United States v. Howard, Fed. Cas. No. 15,403; United States v. Brown, Fed. Cas. No. 14,666; Rabens v. United States, 146 F. 978; Naftzger v. United States, 200 F. 494 (C. C. A. 8); United States v. Eisenminger (D. C.) 16 F. (2d) 816, 820.

Our conclusions are that the government failed to produce any evidence that defendants were persons who were required to register under section 1 of the act, or to pay the special tax, and that there was thus a failure to prove one of the essential elements of the particular offenses charged in the indictment.

We think the court erred in not granting the motion to direct a verdict for defendants. The judgment must therefore be reversed. It is so ordered.

COLLINS v. UNITED STATES.*

Circuit Court of Appeals, Eighth Circuit. June 10, 1927.

No. 7133.

1. Post office 48 (6)-Indictment charging that defendant did "take, steal, and carry away" certain mail bag held not demurrable in use of words "and carry away," not found in statute (Comp. St. § 10364).

Indictment under Criminal Code, § 194 (Comp. St. § 10364), charging that defendant did unlawfully "take, steal, and carry away, and aid and assist in taking, stealing, and carrying away, one certain mail bag," etc., beld not demurrable for use of words "and carry away," though such words are not contained in statute.

2. Post office

48 (6)-Indictment under statute for taking and stealing mail bag need not name owner or state that bag was of any value (Comp. St. § 10364).

Indictment under Criminal Code, § 194 (Comp. St. § 10364), for taking, stealing, and carrying away certain mail bags, held not demurrable for failure to state who was the owner of the mail bags, or for failure to state that they were property of any value.

3. Indictment and information 86(2)-In. dictment for taking and stealing certain mail bags from railway mail car need not definitely describe mail car and exact place of theft (Comp. St. § 10364).

Indictment under Criminal Code, § 194 (Comp. St. § 10364), for taking and stealing certain mail bags from railway mail car, held not demurrable for failure to definitely describe the mail car and the exact place from which the mail bags were stolen, particularly in view of showing that defendant was fully advised of the particular offense charged. 4. Indictment and information 125 (40)— Indictment charging that defendant did “take, steal, * and aid and assist in taking, stealing," etc., a certain mail bag, held not duplicitous (Comp. St. § 10364).

Indictment under Criminal Code, 8 194 (Comp. St. § 10364), charging that defendant did "take, steal, and carry away, and aid and assist in taking, stealing, and carrying away," etc., held not duplicitous in charging that defendant both took and stole the bags, or in charging that he both stole and aided and assisted in the stealing.

5. Criminal law 196-Test on plea of for mer jeopardy is whether same evidence would support conviction in both cases.

On plea of former jeopardy, the test is whether the same evidence would be sufficient to support conviction in both cases.

6. Criminal law 157-Prosecution for theft of mail bag held not barred by three-year statute of limitation (Comp. St. § 10364). Where indictment charging theft of mail bag in violation of Criminal Code, § 194 (Comp. St. § 10364), on November 13, 1920, in Western division of Southern district of Iowa, was returned in Central division of same district on

May 11, 1921, but not filed in Western division until more than three years after date of *Rehearing denied October 5, 1927.

"serve five years on each count at federal prison at Atlanta, Ga., and they shall be served consecutively," held not indefinite, nor sentence for five years only.

Sentence that defendant should "serve five years on each count at the federal prison at Atlanta, Ga., and that they should be served consecutively,” held not void for indefiniteness, nor construable as meaning imprisonment for five years only.

9. Post office 49(13)-Evidence of partici pation in mail robbery held to sustain conviction for theft of bags which did not come into defendant's possession (Comp. St. § 10364, 10506).

In prosecution under Criminal Code, § 194 (Comp. St. § 10364), for theft of certain mail bags, evidence showing that defendant, though had aided in planning robbery, and that half of not actually participating in entry of mail car, the mail bags taken came into his possession, held sufficient to sustain conviction for theft of bags which did not come into his possession, in view of Criminal Code, § 332 (Comp. St. § 10506).

10. Criminal law 59(3)-Aider and abettor need not be present at actual commission of offense, or know details thereof (Comp. St. § 10506)..

Under Criminal Code, § 332 (Comp. St. } 10506), an aider and abettor need not be presand consequently need not know all the details

ent at the actual commission of the offense,

thereof.

11. Indictment and information 174-Defendant, charged as principal, may be convicted on evidence showing that he merely aided and abetted (Comp. St. § 10506).

Indictment may charge defendant with being a principal in the commission of the offense, and under Criminal Code, § 332 (Comp. St. § 10506), conviction may be had on evidence showing that he merely aided and abetted.

12. Criminal law 80-Aider and abettor may be indicted separately as principal, without regard to real principal (Comp. St. § 10506).

Under Criminal Code, § 332 (Comp. St. § 10506), an aider and abettor may be indicted separately as a principal, without regard to real principal.

In Error to the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge.

Keith Collins was convicted of theft of certain mail bags, in violation of Criminal Code, § 194, and he brings error. Affirmed.

E. D. O'Sullivan, of Omaha, Neb. (W. N. Jamieson and C. J. Southard, both of Omaha, Neb., and J. J. Hess, of Council Bluffs, Iowa, on the brief), for plaintiff in error.

Frank F. Wilson, Asst. U. S. Atty., of Mt. Ayr, Iowa (Ross R. Mowry, U. S. Atty., of Newton, Iowa, and Ray C. Fountain, Asst. U. S. Atty., of Des Moines, Iowa, on the brief), for the United States.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and KENNAMER, District Judge.

BOOTH, Circuit Judge. This is a writ of error to a judgment of conviction of plaintiff in error, hereafter called defendant, under an indictment charging him with violations of section 194 of the Criminal Code (Comp. St. § 10364). The charging part of count 1 of the indictment reads as follows:

"That one Keith Collins, on or about the 13th day of November in the year of our Lord one thousand nine hundred and twenty, did at Council Bluffs, in the Western division of the Southern district of Iowa, and within the jurisdiction of this court, unlawfully, willfully, and feloniously take, steal, and carry away, and aid and assist in taking, stealing and carrying away, from an authorized depository for mail matter, to wit, the United States railway mail car of the Chicago & Council Bluffs railway post office, one certain mail bag, which said mail bag is more particularly described as follows, to wit: Mail bag bearing label 'From San Francisco, California, to Washington, D C.,' closed by rotary lock No. D3789-29, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

The other counts, four in number, are similar, except as to the mail bags specified. Section 194 Criminal Code, so far as here material, reads as follows:

"Whoever shall steal, take, from or out of any mail, post office, or station thereof, or other authorized depository for mail matter, any letter, postal card, package, bag, or mail, or shall abstract or remove from any such bag, or mail, any article or thing contained therein, or whoever shall receive, or shall unlawfully have in his possession, any bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or

abstracted, as herein described, knowing the same to have been so stolen, taken, embezzled, or abstracted, shall be fined not more than $2,000, or imprisoned not more than five years, or both."

A special demurrer was interposed to the indictment, and overruled. A plea of former conviction was presented, to which the Government interposed an answer denying the same. In support of the plea there were offered from the records of the court in the former case, the indictment, arraignment,

plea of guilty, and judgment. The plea of fendant refusing to plead further, a plea of not guilty was entered and the trial proceeded.

former conviction was overruled. The de

At the close of the government's case, and again at the close of all the evidence, a motion for directed verdict was made by defendant. It was denied. Motion was also made to dismiss the indictment, on the ground that it was not returned against defendant until more than three years had elapsed after the offense charged was committed. The motion was denied.

of the indictment. Motion in arrest of judgDefendant was found guilty on each count ment was made and denied. Sentence was imposed of five years' imprisonment on each count, to be served consecutively. Eight specifications of error are relied upon. [1] One of them challenges the overruling of the demurrer. Various grounds were set out in the demurrer: One was that the indictment did not allege the offense in the same language as the statute. The words "and carry away" are pointed out as not being contained in the statute. This is true, and those words are no part of the offense denounced by the statute. They might properly be disregarded as surplusage; and so the court held and so charged the jury. There was no error here. United States v. Noveck, 271 U. S. 201, 46 S. Ct. 476, 70 L. Ed. 904; Mathews v. United States, 15 F. (2d) 139 (C. C. A. 8). [2] Another ground of the demurrer was that the indictment did not state who was the owner of the mail bags; nor did it state that they were property of any value. This was not necessary. Bowers v. United States, 148 F. 379 (C. C. A. 8).

[3] Another ground of the demurrer was that the indictment was not sufficiently definite in describing the mail car, and the exact place where the mail bags were stolen. That the indictment was sufficiently definite to advise the defendant of the particular offense charged, appears conclusively from the affi

davit interposed by him in connection with his plea of former jeopardy. The affidavit reads:

"I, Keith Collins, being first duly sworn, depose and say that I am the defendant in the above-entitled case, which is known as case No. 2529, pending for trial in this court; that I am one and the same person as the Keith Collins mentioned in the certified pleadings attached to the plea of former conviction filed in this case, and that the matters appearing of record in the Western and Central divisions of said court, entitled 'United States of America v. Keith Collins,' have reference to me, and I am the party who was previously convicted of a violation of section 194 of the Criminal Code of the United States for that district, which case is known and designated as criminal No. 2574; that the facts which constitute the basis for the indictment now pending are parts of the same continuous state of facts, or alleged criminal acts, inspired by the same alleged criminal intent upon which the former indictment was returned and are the same transactions covered by the indictment to which the plea of guilty was entered. Further deponent sayeth not." [4] Still another ground of the demurrer was that each of the counts of the indictment was duplicitous (a) in that it charged that defendant did both take and steal the mail bags; and (b) in that it charged that defendant did both steal the mail bags and did aid and assist in stealing the same. There is no merit in this charge of duplicity in either respect. Under section 194 it is proper to charge a defendant with doing several of the acts denounced, and, if any one is proven, it is sufficient. Crain v. United States, 162 U. S. 625, 636, 16 S. Ct. 952, 40 L. Ed. 1097; Ackley v. United States, 200 F. 217 (C. C. A. 8); Simpson v. United States (C. C. A.) 229 F. 940; Jacobsen v. United States (C. C. A.) 272 F. 399; Rowan v. United States (C. C. A.) 281 F. 137.

Furthermore, there is but one offense charged, though defendant is alleged to have stolen the mail bags, and also to have aided and abetted the stealing. It is optional with the pleader whether an aider and abettor shall be charged as such, or as a principal under the aider and abettor statute, section 332 Criminal Code (Comp. St. § 10506). All are principals, and the offense of each is the same. Ruthenberg v. United States, 245 U. S. 480, 483, 38 S. Ct. 168, 62 L. Ed. 414. It may be repetitious to charge one as a principal, and also as an aider and abettor, in the same

count; but this does not make the count duplicitous.

Another specification of error challenges the overruling of the plea of former conviction. A comparison of the indictment in the former case with the indictment in the case at bar clearly demonstrates that the offenses charged in the two indictments were entirely distinct, though all grew out of one transaction.

[5] On a plea of former jeopardy, the test is whether the same evidence would be sufficient for conviction in both cases. Morgan v. Devine, 237 U. S. 632, 641, 35 S. Ct. 712, 59 L. Ed. 1153; Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489. It is clear from reading the indictment that the same evidence would not suffice in both. Counsel for defendant concedes this when he says that the evidence in the case at bar would be the same as required under the first indictment, "with a few additions."

Another specification of error relates to an illustration used by the court in its charge to the jury. While the illustration might better have been omitted, yet we think no reversible error resulted.

Another specification of error is based on the refusal of the court to give a requested instruction relative to locus pœnitentiæ. The request was properly refused. The evidence was not such as to make the requested instruction pertinent.

[6] One of the specifications of error raises the question of the statute of limitations. The offense was charged to have been committed on the 13th of November, 1920, in the Western division of the Southern district of Iowa. The indictment was returned in the Central division of the same district on May 11, 1921, but was not filed in the Western division until more than three years had elapsed from the 13th of November, 1920. We hold that the indictment was returned in time. The fact that it was returned in a division different from the one where the offense was committed is not of importance. Such practice is common and valid. Salinger v. Loisel, 265 U. S. 224, 235, 44 S. Ct. 519, 68 L. Ed. 989; Biggerstaff v. United States, 260 F. 926 (C. C. A. 8).

[7] Nor is there any merit in the contention that defendant's constitutional right to a "speedy trial" was infringed. There is no showing that he demanded an earlier trial than was afforded him. Phillips v. United States, 201 F. 259, 262 (C. C. A. 8); Worthington v. United States (C. C. A.) 1 F.(2d)