Frank NIGRO, Plaintiff in Error, v. UNITED STATES, Defendant in Error

Frank NIGRO, Plaintiff in Error, v. UNITED STATES, Defendant in Error. Circuit Court of Appeals, Eighth Circuit. June 22, 1928. No. 7796. In Error to the District Court of the United States for the Western District of Missouri. W. G. Lynch, of Kansas City, Mo. (Harvey Roney, of Kansas City, Mo., on the brief), for plaintiff in error. Harry L. Thomas, Asst. U. S. Atty., of Kansas City, Mo. (Roscoe C. Patterson, U. S. Atty., of Kansas City, Mo., and William L. Yandeventer, Asst. U. S. Atty., of Springfield, Mo., on the brief), for the United States. Before SANBORN and BOOTH, Circuit Judges, and PHILLIPS, District Judge. Rehearing denied August 28, 1928. [MAJORITY — PER CURIAM.] PER CURIAM. This is a writ of error to a judgment of conviction for violation of the Harrison Anti-Narcotic Act (Act Dec. 17, 1914, 38 Stat. 785, amended February 24, 1919, 40 Stat. 1130, re-enacted November 23, 1921, 42 Stat. 298, and re-enacted June 2, 1924, 43 Stat. 328 (U. S. C. tit. 26, §§ 211, 692, 696, 700 [26 USCA §§ 211, 692, 696, 700]; Comp. St. §§ 6287g, 6287h, 6287n). The indictment contained two counts: One under section 8 of the act (26 USCA § 700; Comp. St. § 6287n) for unlawful possession; the other under section 2 (26 USCA § 696; Comp. St. § 6287h) for unlawful sale not in pursuance of a written order on the official blank. The defendant was convicted on both counts, but the sentence imposed was such as might have been given under either count alone. This court upon a consideration of the cause was of the opinion that the conviction could not be sustained on the first count, inasmuch as the charge of the trial court was at variance with the views of this court as expressed in the cases of O’Neill v. United States, 19 F.(2d) 322, and Butler v. United States, 20 F.(2d) 570. As to the second count, this court, being in doubt with reference to the proper construction of the first sentence of section 2 of the a<St, certified several questions to the Supreme Court. Those questions have now been answered. Nigro v. United States, 48 S. Ct. 388, 72 L. Ed. -, opinion filed April 9, 1928. In view of the answers to the questions certified, we now hold that there was no error involved in the conviction of defendant under the second count. The judgment of the trial court on the first count of the indictment is accordingly reversed; the judgment of conviction under thfe second count is affirmed; the sentences as to both counts are set aside; and the cause remanded to the trial court with instructions to impose and enter sentence on the second count without reference to the first count. Judge SANBORN participated in the hearing and consideration of this cause, but died after certification of questions to the Supreme Court, and before the filing of this opinion.