McBride v. United States, 15370.

Citation225 F.2d 249
Decision Date17 September 1955
Docket NumberNo. 15370.,15370.
PartiesJulius Bascom McBRIDE, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Bernard A. Golding, Houston, Tex., for appellant.

Malcolm R. Wilkey, U. S. Atty., and John C. Snodgrass, Asst. U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, JONES, Circuit Judge, and WRIGHT, District Judge.

JONES, Circuit Judge.

The appellant, Julius Bascom McBride, had been practicing osteopathy in Houston, Texas, for nearly twenty years. Among his patients and friends was L. D. Morrison, who was Chief of Police in Houston during the occurrence of the happenings out of which this appeal arose. Morrison was thrown into an automobile in the latter part of 1951 and this incident or other cause resulted in a back injury, diagnosed as a ruptured intervertebral disc, attended by severe pain. In January, 1952, he consulted Dr. J. T. Billups, a surgeon, who sent him to a hospital where he was given traction treatment. While in the hospital he was given narcotics of one kind or another, including codeine combined with other drugs for relieving pain. Surgery was discussed but Morrison would not agree to it.

Soon after being discharged from the hospital, Morrison went to appellant who sent him to another osteopath for X-ray treatments, from which he had a reaction. For the relief of the condition created by the X-ray the appellant used nembutal and pantopon, neither of which was entirely satisfactory. The appellant then tried codeine. The effect of the initial use of this drug was described by the appellant in these words: "the next morning everything was lovely. Oh, everything was lovely, and so the next day, I thought, `Boy, we better do that again' * * *." The appellant then began prescribing codeine in combination with other drugs, later changing to direct dispensing from appellant's office of "codeine straight", as it was described by him.

During 1953, 215 grains of codeine by prescription and 671 grains, or more, by direct dispensation were received by Morrison from appellant. During the first four and a half months of 1954 appellant dispensed directly to Morrison not less than 800 grains of codeine, some of which was delivered a hundred grains at a time. In appellant's narcotic record book, which appellant was required to keep, the name of Morrison was erased and the name of Billy Jackson, an incurable cancer patient of appellant, was substituted. The appellant's reason for so doing as given to the Federal Narcotics Agents was that Morrison had objected to his name being inserted in the record. At the trial appellant thought perhaps Morrison had not expressed an objection but he had ascertained Morrison's objections by reading his mind. Upon being confronted by the Narcotics Agents with these entries, which appellant's counsel at the trial admitted were false, the appellant readily admitted the name Billy Jackson was used in lieu of Morrison's name to show the destination of the drug dispensed. He then and at the trial contended the Billy Jackson entries were merely a code "like John Doe". He testified that when one of the agents "asked me for my narcotic record, my books, I knew I had better explain it to him immediately because, well, like I say, I knew my wife had fussed at me about handling these people, and I thought I had better say it ahead of time, because I knew it was a hell of a mess * * *".

The appellant and his wife were both constantly concerned about the dispensing of such large quantities of a narcotic to Morrison. He frequently expressed to Morrison his fears that his patient was or was becoming an addict, and on various occasions he attempted to get Morrison to discontinue the use of codeine. Appellant's wife urged him to stop dispensing the drug to Morrison. The appellant attempted to justify his conduct to himself by the belief, or perhaps hope, that the dispensing of narcotics when accompanied by treatment was not illegal. He therefore gave Morrison an osteopathic treatment upon each occasion of dispensing codeine and followed the same procedure with others.

The appellant was indicted in twenty-six counts, odd numbered counts 1, 3, 5, 7, and 9 charging false and fraudulent entries in the appellant's record of dispensation of narcotics, under 18 U.S.C.A. § 1001, counts 11, 13, 15 and 17 charging the false making, altering, forging and counterfeiting of the narcotics records, under 18 U.S.C.A. § 494, counts 19, 21, 23 and 25 charging false and fraudulent execution of entries in the narcotics record, a document required by the Internal Revenue Laws and Regulations, under 26 U.S.C.A. § 3793, and the even numbered counts charging that appellant sold, dispensed and distributed narcotics not in the course of professional practice, not for legitimate medical purposes, and not in good faith, under the Harrison Act, 26 U.S.C.A. §§ 2550, 2554. Prior to the trial, the appellant filed (1) a motion to dismiss the indictment upon the ground, among others, that the indictment was based upon the testimony, unwillingly given, of appellant's wife, (2) a motion for a bill of particulars, (3) a motion to inspect the Grand Jury minutes, and (4) a motion for the return of and suppression as evidence of seized property. The motion to inspect was granted. The other motions were denied. Application was made to transfer the case from the Houston Division because of the publicity the case had received. The cause was transferred to and the trial held in Corpus Christi. At the close of the testimony, a motion was made by appellant for a directed verdict. The motion was denied. The jury returned a verdict of guilty on all counts. A motion for a new trial was denied.

The appellant urges before this Court, at the outset, that the indictment is defective. The appellant's wife appeared before a Grand Jury which indicted appellant. This indictment was dismissed. A subsequent Grand Jury returned the indictment upon which appellant was tried. Appellant says in his brief that although appellant's wife did not appear before the second Grand Jury, it used the minutes of the prior Grand Jury in which her testimony appeared. There is nothing before us that shows that the testimony of appellant's wife before the first Grand Jury was transcribed or that the second Grand Jury had any access to or knowledge of her testimony. Counsel who presented the case to the Grand Jury for the Government and who tried the case in the District Court deny that the minutes of the former Grand Jury were in any way used by or before the body which returned the indictment. We need not consider the effect of something which is not shown to have occurred.

The appellant contends that he was not required to keep records of the narcotics dispensed to Chief Morrison, that if required to keep records he was justified in believing otherwise and in acting on his belief, that the records as kept by him fulfilled the statutory requirements, that the codeine given was dispensed in the course of the legitimate practice of his profession, that the Court's charge was erroneous and prejudicial, and finally, that the Judge, by remark and comment, created an unjudicial atmosphere in the courtroom.

The Harrison Act levies a tax upon the importation and sale of designated narcotics and narcotic compounds and derivatives. 26 U.S.C.A. § 2550. Codeine is included. It is provided that:

"It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary."
"Nothing contained in this section * * * shall apply —
"To the dispensing or distribution of narcotic drugs to a patient by a physician, dentist, veterinary surgeon, or other practitioner, registered under section 3221, in the course of his professional practice only: Provided, That such physician, dentist, veterinary surgeon, or other practitioner, shall keep a record of all such drugs dispensed or distributed, showing the amount dispensed or distributed, the date, and the name and address of the patient to whom such drugs are dispensed or distributed, except such as may be dispensed or distributed to a patient upon whom such physician, dentist, veterinary surgeon, or other practitioner, shall personally attend; and such record shall be kept for a period of two years from the date of dispensing or distributing such drugs, subject to inspection, as provided in section 2556.
"To the sale, dispensing, or distribution of narcotic drugs by a dealer to a consumer under and in pursuance of a written prescription issued by a physician, dentist, veterinary surgeon, or other practitioner, * * *." 26 U.S.C.A. § 2554.

Violations are criminal offenses and penalties are provided. 26 U.S.C.A. § 2557, 18 U.S.C.A. § 1001.

Because the appellant gave to Morrison an osteopathic treatment on each occasion when codeine was dispensed, it is urged that the drug was given "to a patient upon whom such * * * practitioner shall personally attend", and being so given the record was not required. We need not risk restricting the meaning of the phrase "personally attend" by a definition. It is enough to say that the evidence justified the findings by the jury as an incident to its verdict of guilty that the statutory exception from record keeping did not apply to the giving by the appellant of codeine in quantities exceeding the amounts approved by any of the medical witnesses and regarded by most as greater than justified by standard medical practice. The appellant was asked if it was his understanding that he had a legal right to dispense. He testified that Police Chief Morrison had brought him a book on narcotics "and it says plainly there `when personally — when you are in personal attendance or personally...

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