United States v. Tucker
| Decision Date | 08 April 1911 |
| Citation | 188 F. 741 |
| Parties | UNITED STATES v. TUCKER. |
| Court | U.S. District Court — Southern District of Ohio |
Sherman T. McPherson, U.S. Dist. Atty.
Vorys Sater, Seymour & Pease, for defendant.
The defendant delivered at Mt. Gilead, Ohio, and shipped from that place to one Henson (whose real name is Morgan) residing at Washington, D.C., a bottle of medicine containing cocaine. The bottle bore no label or brand indicating the presence of that drug in the medicine. The jury having found him guilty of violating the pure food and drugs act of June 30, 1906, 34 Stat. 768, c. 3915 (U.S. Comp. St. Supp. 1909 p. 1187), he moves to set aside the verdict on the ground that he was engaged in intrastate, and not in interstate commerce.
In answer to an inquiry from Henson, the defendant mailed him an examination or symptom blank and what is manifestly a previously prepared stock letter, stating that under a separate cover were forwarded to him circulars fully explaining the defendant's system of relief and cure for asthma, hay fever, and nasal catarrh, and naming the cost of treatment. Henson was requested to fill out the blank and return it with full payment in advance, on receipt of which a treatment would be sent by express without delay. Henson filled out the symptom blank and returned it with a postal order for the sum named. Thereupon the defendant deposited in the mail at Mt. Gilead a bottle containing two ounces of the medicine, addressed to Henson, and also shipped to him by express an atomizer, both of which were received by Henson at Washington. Later a second bottle of medicine was sent in the same manner as the first. Henson made no suggestion and gave no direction as to the mode of transporting any of the medicine.
Was the transaction in which the defendant engaged interstate commerce? His contention is that the sale and delivery were completed in Ohio, when the medicine was deposited in the mail, and that the title thereto then and there passed to the purchaser, free from any interest of the defendant therein, that the delivery to the postal department for transmission to Henson was a delivery to him, and that consequently the transaction was wholly intrastate and governed by the Ohio law of sales (99 Ohio Laws, pp. 413-425; sections 8381-8455, Ohio General Code). He claims that the fact that the sale was made with the intent that the medicine should be transported from Ohio to the District of Columbia after the sale and delivery were fully completed did not impart an interstate character to the transaction, because the agent by whom the transportation was effected-- the United States mail-- was the agent of the purchaser and not of himself. To sustain his contention he relies on State v. Mullin, 78 Ohio St. 358, 85 N.E. 556, 18 L.R.A. (N.S.) 609, 125 Am.St.Rep. 710 .
In that case a resident of Harrison county gave an order by mail to a resident of Jefferson county for a case of beer to be forwarded to the purchaser by express, marked 'C.O.D.' The beer was sent, received, and paid for. It was held that the express company was the agent of the purchaser to receive the goods from the seller and the agent of the seller to receive their price from the purchaser, and that upon delivery to the carrier the title to the goods passed to the purchaser, although he was not entitled to their actual possession until he paid or tendered the purchase price. It was further held that the place of both the sale and delivery was the place of the seller's residence, and that the sale was completed when the seller delivered the goods to the carrier. The transaction was wholly intrastate, and the goods were shipped under instructions given by the purchaser. The facts of that case and the law applicable thereto readily distinguish it from the case at bar.
The second section of the pure food and drugs act is limited in its application to interstate and foreign commerce. The prohibition therein contained runs against the introduction of misbranded drugs into any state, or territory, or the ...
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