McDade v. United States

206 F.2d 494, 1953 U.S. App. LEXIS 2776

Opinion

PER CURIAM.

This appeal was heard on the record, briefs, and argument of counsel for respective parties;

And the Court being of the opinion that the offense described in Section 2553(a), Title 26 U.S.Code, which is charged in the second count of the Information, is a different offense from the offense described in Section 174, Title 21 U.S.C.A., which is charged in the third count of the Information, in that each requires proof of a fact which the other does not, Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Schmeller v. United States, 6 Cir., 143 F.2d 544, 549;

And that the statutory presumption under each statute arising from the possession of the subject matter of the offense is a rule of evidence dealing with the proof of the offense rather than defining the offense; Corollo v. Dutton, 5 Cir., 63 F.2d 7, 8; United States v. Yee Fing, D.C. Mont., 222 F. 154, 155; United States v. Tom Yu, D.C.Mont., 1 F.Supp. 357, 358;

And that the sentence imposed under the third count of the Information is not invalid, as claimed by appellant; Silverman v. United States, 1 Cir., 59 F.2d 636, 637; Corollo v. Dutton, supra; Bruno v. United States, 9 Cir., 164 F.2d 693; Copperthwaite v. United States, 6 Cir., 37 F.2d 846;

It is ordered that the judgment of the District Court be affirmed.