Circuit Court of Appeals, Second Circuit.
Anthony J. Ernest and John B. Johnston, both of New York City, for plaintiff in error.
William A. De Groot, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, Asst. U. S. Atty., of Brooklyn, N. Y., and Harry Chiert, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before MANTON, and LEARNED HAND, Circuit Judges, and AUGUSTUS N. HAND, District Judge.
LEARNED HAND, Circuit Judge (after stating the facts as above).
A majority of the court is of the opinion that upon the evidence there was a question of fact whether the transaction between Amendola and Marinelli was an outright sale, or whether Amendola deputed Marinelli to sell the drug for him in Brooklyn as his servant or agent. That was the only question raised upon the trial, and, had it not been for the sentence, we should not have taken any other of our own motion. It was a technical matter, of not the least substance, on which side of the East River Amendola should be tried; if there was error in the conduct of the trial, affecting *530 that alone, we should hold him strictly to the record.
But for reasons which we shall state in a moment the result has been in the judgment of us all a miscarriage of justice, and we think we should notice errors, though not raised by the defendant. Even though the evidence justified a submission of the case to the jury, the question was not presented to them in the colloquial charge of the judge, and we may be sure that they did not take it for themselves. The result is that the defendant was convicted without any determination by the jury as to the character of the transaction on which his guilt in law depended under the indictment actually found. This was an error in any view, and while a majority of us should not, as we have said, have raised it, if the result as a whole had been just, we think the sentence gives the defendant a substantial complaint, even against formal errors.
The indictment was in four counts for the same transaction, a single sale in Brooklyn. This was laid as a conspiracy, as an unregistered sale, as a sale to a buyer who did not have the prescribed form, and as an unlawful possession. All these are in form separate crimes, and the judge had power to impose a separate sentence upon each cumulatively, making it in all seventeen years, if he chose. In fact, he did so cumulate the sentences to ten years, twice the maximum prescribed by Congress. It is true that the defendant was an old offender; he had been convicted once as a receiver of stolen goods, three times for petit larceny, and once for selling narcotics. This did, indeed, make him subject to the maximum penalty; but it did not in our view justify swelling a single offense into two separate offenses by the mere contrivance of charging it in different ways.
We have already expressed ourselves upon this subject, as we supposed unambiguously. Harrison v. U. S. (C. C. A.) 7 F.(2d) 259; Hartson v. U. S. (C. C. A.) 14 F.(2d) 561. And the first decision was expressly brought to the attention of the judge. While we recognize, of course, that we have no power over the sentence, yet, when the question arises as to whether the record clearly shows that there has been an unjust result, we will not ignore an error which, except for the sentence, would not have justified reversal. We cannot assent to the repetition of the charge with purely formal changes, as a device to double the penalty, unless the whole trial was conducted with the most scrupulous exactness.
Judgment reversed.
