19 Opinion of the Court. Petitioner insists that each offense here requires proof of only the single fact of possession, which brings it within the rule in Blockburger, supra. However, petitioner completely overlooks the fact that the "acts or transactions" prohibited by the respective statutes cannot be equated to possession alone. Let us analyze the offenses. Under the first count of the indictment, the prosecution must prove a purchase of narcotics, other than in or from the original stamped package. In order to establish these ultimate facts, the prosecutor may put on direct evidence of possession of the unstamped heroin and the statutory presumption of § 4704 (a) then has the effect of establishing, prima facie, that there was in fact a purchase and that the purchase was other than in or from the original stamped package. In this case, the heroin itself was introduced in evidence, thus the jury could determine whether or not it was stamped. Similarly, under the second count, the prosecution was obligated to prove three ultimate facts: (1) that the heroin was received and concealed; (2) that it had been imported contrary to law; and (3) that petitioner knew of the unlawful importation. After putting on direct evidence of the possession, the prosecution was aided by the statutory presumption of § 174 that the ultimate facts of the violation-entirely different, it must be noted, from those of the first count-were also present. Thus, the violation, as distinguished from the direct evidence offered to prove that violation, was distinctly different under each of the respective statutes. Instead of limiting his proof to an alibi, petitioner could, by offering evidence tending to controvert one presumption or the other as to the ultimate facts, have earned an acquittal on either count and still have been found guilty on the other. Furthermore, to take advantage of the presumption of 174 it is necessary only to prove possession Opinion of the Court. 359 U.S. by direct evidence; whereas to take advantage of the presumption of § 4704 (a) it is necessary to prove by direct evidence that the narcotic was unstamped as well as that it was in the defendant's possession. It follows, even if the Blockburger test were applicable, that the offenses were separate and that consecutive sentences could be imposed on each count. We have considered the other contentions raised by petitioner and found them to be without merit. The judgment of the Court of Appeals is Affirmed. MR. CHIEF JUSTICE WARREN concurs in the result. MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissent. 359 U.S. Per Curiam. AHO v. JACOBSEN. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 36. Decided March 2, 1959. Certiorari granted; judgment vacated; and case remanded to the District Court for retrial on the admiralty side. Reported below: 249 F. 2d 309. George J. Engelman and Harry Kisloff for petitioner. Paul R. Frederick for respondent. PER CURIAM. The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the District Court for retrial on the admiralty side, Romero v. International Terminal Operating Co., 358 U. S. 354, in light of Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625. Per Curiam. 359 U.S. MCDANIEL v. THE LISHOLT ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 424. Decided March 2, 1959. Certiorari granted; judgment vacated; and case remanded to the District Court for a new trial. Reported below: 257 F. 2d 538. C. Dickerman Williams for petitioner. James M. Estabrook and Francis X. Byrn for respondent A/S Lise. PER CURIAM. The petition for writ of certiorari is granted and the judgment of the United States Court of Appeals for the Second Circuit is vacated. The case is remanded to the District Court for a new trial in light of Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625. NEW JERSEY ET AL. v. UNITED STATES ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. No. 621. Decided March 2, 1959.* 168 F. Supp. 324, affirmed. David D. Furman, Attorney General of New Jersey, for appellants in No. 621. Milton T. Lasher, William A. Roberts, Irene Kennedy and Maxwell A. Howell for appellants in No. 622. Solicitor General Rankin, Assistant Attorney General Hansen and Robert W. Ginnane for the United States and the Interstate Commerce Commission, and Thomas E. Dewey and Gerald E. Dwyer for the New York Central Railroad Co., appellees. PER CURIAM. The motions to affirm are granted and the judgment is affirmed. *Together with No. 622, County of Bergen et al. v. United States et al., on appeal from the same court. 495957 O-59-7 |