Major Cook and James Harold Jackson v. United States

In our decision in this case we reversed the judgment and remanded the cause to the court below for a new trial, because there was no proof the alleged narcotic was in fact a narcotic. Now the appellants, who won the new trial, have petitioned for a rehearing alleging that we should not have ordered a new trial but should have ordered the case dismissed on the ground that there was a complete lack of proof to establish federal jurisdiction. Relying upon Jefferson v. United States, 9 Cir., 340 F.2d 193 , appellants assert that there was no proof of either actual or constructive possession of alleged narcotics by either defendant and hence that the Government cannot rely on Sec. 174 of Title 21 U.S.C. which holds that when a defendant is shown to have had possession of a narcotic drug, such possession should be deemed sufficient evidence to authorize conviction under the statute which provides for proof of knowledge that the drug was imported or brought into the United States contrary to law. Appellants assert that the prosecution relied upon proof of narcotics in the possession of an unindicted co-conspirator.

It is true that the alleged heroin introduced as Exhibit 4 at the trial…