(dissenting). Upon the facts defendant is not a second offender and the trial court was without authority to sentence him as such. Section 1941 of the Penal Law provides that a person who, after having been once convicted under the laws of any government of a crime which, if committed within this State, would be a felony, commits any felony within this State, is punishable as a second offender. In this case the crime with which defendant was charged in the Federal indictment and the crime of which he was convicted in the United States District Court *540for the Southern District of New York, did not and does not now constitute a felony if committed within this State; hence it could furnish no basis for the defendant’s conviction as a second offender.
The Federal indictment contained six counts. The first alleged that on May 27, 1937, defendant unlawfully sold heroin which was not in or from an original stamped package containing internal revenue stamps as required by an act of Congress (U. S. Code, tit. 26, § 1043). The second count alleged that the sale of the drug was not in pursuance of a written order of the purchaser on a form issued in blank for that purpose by the Commissioner of Internal Revenue of the United States as provided by act of Congress (U. S. Code, tit. 26, § 1044). The third count charged that the defendant sold heroin which he knew had been imported illegally into the United States in violation of an act of Congress (U. S. Code, tit. 21, §§ 173, 174). The remaining counts of the ndictment, namely, the fourth fifth and sixth counts, were identical with the three enumerated except that they were based upon a transaction had with the same purchaser on a different date, to wit, June 10, 1937.
Concededly the crime of which defendant was previously convicted in the United States District Court is a felony under the Federal law. However, it does not follow that the acts constitute a crime under our State law. Thus, the crime of using the mails to defraud, although a felony under the Federal law, is an offense cognizable only by the laws of the United States and not one which is a crime under the laws of this State. (People v. Gutterson, 244 N. Y. 243, 250.) To the same effect are People v. Knox (223 App. Div. 123) and People v. Voelker (220 id. 528; 222 id. 717).
On August 11, 1937, the date of the defendant’s conviction in the Federal court, it was no crime under the laws of this State to sell heroin which was not in or from the original stamped package containing the internal revenue stamps required by Federal law (Federal counts 1 and 4); nor was it a crime under the New York statutes to sell the drug in the absence of a written order from the purchaser to defendant on a form issued in blank for that purpose by the Commissioner of Internal Revenue (Federal counts 2 and 5), or to sell heroin with knowledge that it had been illegally imported into this country (Counts 3 and 6 of the Federal indictment). (Cf. Penal Law, § 1751, as it read in Aug. 1937 [See Laws of 1929, chap. 377, § 2]; Public Health Law, art. 22.)
Section 422 of the Public Health Law authorizes the sale of narcotic drugs in New York State by a duly licensed manufacturer, wholesaler or apothecary upon compliance with certain prescribed regulations. Such was the law, too, at the time of defendant’s *541Federal conviction. Before such a sale may be deemed unlawful in this State the circumstances of the sale must disclose that the seller was not a duly licensed manufacturer, wholesaler or apothecary or that in maldng the sale the seller did not comply with the provisions governing such sale as set forth in article 22 of the Public Health Lav.
The Federal statutes do not specifically prohibit the sale of narcotic drugs as such, for that is a matter entirely beyond the authority of Congress and within the exclusive control of the States. They may and do prohibit, not the sale of narcotic drugs as sales, but only the sale of the drugs in violation of Federal tax laws or in violation of United States custom laws. This distinction is clearly enunciated by the United States Supreme Court in the case of Blockburger v. United States (284 U. S. 299), where Sutherland, J., writing for the court, says:
“ The [Harrison] Narcotic Act does not create the offense of engaging in the business of selling the forbidden drugs, but penalizes any sale made in the absence of either of the qualifying requirements set forth. * * *
“ Section 1 of the Narcotic Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package; and § 2 creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold. * * *
“ The statute is not aimed at sales of the forbidden drugs qua sales, a matter entirely beyond the authority of Congress, but at sales of such drugs in violation of the requirements set forth in §§ 1 and 2, enacted as aids to the enforcement of the stamp tax imposed by the act.” (Cases cited.)
The Harrison Act, so called, is a taxing measure, for otherwise it would be no law at all. (Alston v. United States, 274 U. S. 289, 294; Nigro v. United States, 276 id. 332, 341, 345, 352.)
In construing the crime charged in the Federal indictment, the burden was on the People to show that the acts therein alleged contained all the elements necessary to constitute a crime as described in article 22 of the Public Health Law, including the negative of the exceptions therein set forth. The terms of those exceptions are part of the description of the crime itself. The People were under a duty to establish that the accused is not within such exceptions or provisos. (People v. Devinny, 227 N. Y. 397, 401; People v. Stedeker, 175 id. 57; Rowell v. Janvrin, 151 id. 60.)
Section 440 of article 22 of the Public Health Law of this State casts upon the defendant the burden of proof of any exception *542or proviso in any action or proceeding brought for the enforcement of article 22 of the Public Health Law. However, it has no application to this proceeding which was the trial of an information charging defendant with being a second offender. By his plea to the Federal indictment in the United States court the defendant admitted only the allegations therein set forth. Upon those allegations it does not appear that the defendant committed any offense under the laws of this State. In a proceeding to determine whether or not a defendant is a second offender (Penal Law, § 1943) the court is confined to the facts charged in the indictment upon which the previous conviction was had. (People v. Voelker, 222 App. Div. 717; People v. Krumme, 161 Misc. 278.) To hold that section 440 of article 22 of the New York State Public Health Law is applicable in construing the crimes alleged in the Federal indictment would cast upon this defendant the burden of proving that the sale of the drug which he had made over three years before and for which he had already been convicted and punished under the Federal law, was an authorized one under the sections specified in the New York law. The burden rests on the People to prove beyond a reasonable doubt that the crime of which the defendant had been convicted in the Federal court would be a felony if committed within this State. (People v. Reese, 258 N. Y. 89, 101.) That burden they did not sustain in this case.
Though the offense of which this defendant was convicted in the Federal court is a heinous one, he was substantially punished for that crime. No matter how much we may condemn the nature of the offense committed by defendant, he may only be penalized-in the manner provided by law. • In the face of the language of section 1941 of the Penal Law, it may not be adjudged that the defendant is a second offender based upon his conviction in the Federal court in the absence of a showing that such offense was a felony under our State laws at the time it was committed.
The information under section 1941 and section 1943 of the Penal Law should accordingly be dismissed, the judgment should be modified by reducing the sentence to imprisonment for not less than two years and six months and not more than five years, and as so modified, it should be affirmed.
Judgment, so far as appealed from, affirmed.