284 U.S. 299 (1932)
The petitioner was charged with violating provisions of the Harrison Narcotic Act, c. 1, § 1, 38 Stat. 785, as amended by c. 18, § 1006, 40 Stat. 1057, 1131, and c. 1, § 2, 38 Stat. 785, 786, as amended.1 The indictment contained five counts. The jury returned a verdict against petitioner upon the second, third and fifth counts only. Each of these counts charged a sale of morphine hydrochloride to the same purchaser.2
The second count charged a sale on a specified day of ten grains of the drug not in or from the original stamped package. The third count charged a sale on the following day of eight grains of the drug not in or from the original stamped package. The fifth count charged the latter sale also as having been made not in pursuance of a written order of the purchaser as required by the statute.34
It appears from the evidence that shortly after delivery of the drug which was the subject of the first sale, the purchaser paid for an additional quantity, which was delivered the next day. The first sale had been consummated, and the payment for the additional drug, however closely following, was the initiation of a separate and distinct sale completed by its delivery.5
The court sentenced petitioner to five years imprisonment and a fine of $2,000 upon each count, the terms of imprisonment to run consecutively. This judgment was affirmed on appeal.6
Whether the two sales charged in the second and third counts, although made to the same purchaser, constitute a single offense?7
The distinction between an offense continuous in its character and a case where the statute is aimed at an offense that can be committed uno ictu is well settled.8 The 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.9 Each of several successive sales constitutes a distinct offense, however closely they may follow each other.10 The test is whether the individual acts are prohibited, or the course of action which they constitute.11 If the former, then each act is punishable separately.12
No. The established facts demonstrate that the sales charged in the second and third counts, although made to the same person, were distinct and separate sales made at different times.13 It appears from the evidence that shortly after delivery of the drug which was the subject of the first sale, the purchaser paid for an additional quantity, which was delivered the next day. The first sale had been consummated, and the payment for the additional drug, however closely following, was the initiation of a separate and distinct sale completed by its delivery. The first transaction, resulting in a sale, had come to an end.14
The next sale was not the result of the original impulse, but of a fresh one — that is to say, of a new bargain.15 These facts establish two distinct sales made at different times rather than a single continuing offense.16
The two sales charged in the second and third counts constitute two separate offenses.17
Whether the sale charged in the third count as having been made not from the original stamped package, and the same sale charged in the fifth count as having been made not in pursuance of a written order of the purchaser, constitute but one offense?18
Section 1 of the Narcotic Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package.19 Section 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.20 Thus, upon the face of the statute, two distinct offenses are created.21 The test is that where the same act or transaction constitutes a violation of two distinct statutory provisions, each provision requires proof of a fact which the other does not.22 Each of the offenses created requires proof of a different element.23
No. The established facts show that the third count charged the sale as having been made not in or from the original stamped package.24 The fifth count charged the latter sale also as having been made not in pursuance of a written order of the purchaser as required by the statute. Although there was but one sale, the two sections were violated by that sale.25 The third count required proof of the absence of the stamped package, a fact not required by the fifth count.26
The fifth count required proof of the absence of a written order, a fact not required by the third count.27 Applying the test, although both sections were violated by the one sale, two offenses were committed.28
The sale constitutes two distinct offenses for which separate penalties may be imposed.29