U.S. Supreme Court BLOCKBURGER v. UNITED STATES, 284 U.S. 299 (1932)
284 U.S. 299
BLOCKBURGER v. UNITED STATES. No. 374. Argued and Submitted Nov. 24, 1931. Decided Jan. 4, 1932.
On Writ of Certiorari to the United States Circuit Court of Appeals for the Seventh Circuit.
Harry Blockburger was convicted of violating certain provisions of the Harrison Anti-Narcotic Act. To review a judgment of the Circuit Court of Appeals [50 F.(2d) 795], affirming the judgment of conviction, the defendant brings certiorari.
[Page 284 U.S. 299, 300]
Mr. Harold J. Bandy, of Granite City, Ill., for petitioner.
The Attorney General and Mr. Claude R. Branch, of Providence, R. I., for the United States.
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 (U. S. C. Title 26, 692 [26 USCA 692]);1 and c. 1, 2, 38 Stat. 785, 786 (U. S. C., Title 26, 696 [26 USCA 696]).2 The indictment
[Page 284 U.S. 299, 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, 35 S. Ct. 710. There the accused was convicted under several counts of a willful tearing, etc., of mail bags with intent to rob. The court (page 628 of 237 U. S., 35 S. Ct. 710, 711) 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.' Answerint this question, the court, after quoting the statute, section 189, Criminal Code , (U. S. C. title 18, 312 [18 USCA 312]) said (page 629 of 237 U. S., 35 S. Ct. 710, 711): '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.'
[Page 284 U.S. 299, 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 (section 9, 26 USCA 705), '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 sections 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. Footnotes
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.'