Jin Fuey Moy v. United States, 44

• Decision Date: 06 December 1920
• Docket Number: No. 44,44
• Citation: 41 S.Ct. 98,254 U.S. 189,65 L.Ed. 214
• Parties: JIN FUEY MOY v. UNITED STATES
• Court: U.S. Supreme Court

254 U.S. 189

41 S.Ct. 98

65 L.Ed. 214

JIN FUEY MOY

v UNITED STATES.

No. 44.

Argued Oct. 11, 1920.

Decided Dec. 6, 1920.

Messrs. H. Ralph Burton, of Washington, D. C., John W. Dunkle, of Pittsburgh, Pa., and Blaine Mallan, of Washington, D. C., for plaintiff in error.

Mr. Solicitor General Frierson, for the United States.

Mr. Justice PITNEY delivered the opinion of the Court.

Plaintiff in error was indicted and convicted for violating section 2 of an Act of Congress approved December 17, 1914, commonly known as the Harrison Anti-Narcotic Act (38 Stat. 785, ch. 1 [Comp. St. § 6287h]).¹ His motion in arrest of judgment having been overruled (253 Fed. 213), he brought the case here by direct writ of error under section 238, Judicial Code, upon the ground of the unconstitutionality of the act. Afterwards this question was set at rest by our decision in United States v. Doremus, 249 U. S. 86, 39 Sup. Ct. 214, 63 L. Ed. 493, sustaining the act; but our jurisdiction continues for the purpose of disposing of other questions raised in the record. Brolan v. United States, 236 U. S. 216, 35 Sup. Ct. 285, 59 L. Ed. 544; Pierce v. United States, 252 U. S. 239, 40 Sup. Ct. 205, 64 L. Ed. 542.

These questions relate to the sufficiency of the indictment, the adequacy of the evidence to warrant a conviction, the admissibility of certain evidence offered by defendant and rejected by the trial court, and the instructions given and refused to be given to the jury.

The indictment contained twenty counts, differing only in matters of detail. Defendant was convicted upon eight counts, acquitted upon the others. Each count averred that on a date specified, at Pittsburgh, in the county of Allegheny, in the Western district of Pennsylvania, and within the jurisdiction of the court, defendant was a practicing physician, and did unlawfully, willfully, knowingly, and feloniously sell, barter, exchange, and give away certain derivatives and salts of opium, to wit, a specified quantity of morphine sulphate, to a person named, not in pursuance of a written order from such person on a form issued in blank for that purpose by the Commissioner of Internal Revenue under the provisions of section 2 of the act, 'in manner following, to-wit, that the said Jin Fuey Moy, at the time and place aforesaid, did issue and dispense' to the person named a certain prescription of which a copy was set forth, and that said person 'was not then and there a patient of the said Jin Fuey Moy, and the said morphine sulphate was dispensed and distributed by the said Jin Fuey Moy not in the course of his professional practice only; contrary to the form of the act of Congress,' etc.

It is objected that the act of selling or giving away a drug and the act of issuing a prescription are so essentially different that to allege that defendant sold the drug by issuing a prescription for it amounts to a contradiction of terms, and the repugnance renders the indictment fatally defective. The government suggests that the clause as to issuing the prescription may be rejected as surplusage; but we are inclined to think it enters so intimately into the description of the offense intended to be charged that it cannot be eliminated, and that unless defendant could 'sell,' in a criminal sense, by issuing a prescription, the indictment is bad. If 'selling' must be confined to a parting with one's own property there might be difficulty. But by section 332 of the Criminal Code (Comp. St. § 10506):

'Whoever directly commits any act constituting an offense, defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.'

Taking this together with the clauses quoted from section 2 of the Anti-Narcotic Act, it is easy to see, and the evidence in this case demonstrates, that one may take a principal part in a prohibited sale of an opium derivative belonging to another person by unlawfully issuing a prescription to the would-be purchaser. Hence there is no necessary repugnance between prescribing and selling, and the indictment must be sustained.

The evidence shows that defendant was a practicing physician in Pittsburgh, registered under the act so as to be allowed to dispense or distribute opium and its derivatives without a written order in official form, 'in the course of his professional practice only'; that he was in the habit of issuing prescriptions for morphine sulphate without such written order and not in the ordinary course of professional practice; that he issued them to persons not his patients and not previously known to him, professed morphine users, for the mere purpose, as the jury might find, of enabling such persons to continue the use of the drug, or to sell it to others; in some cases he made a superficial physical examination, in others none at all; his prescriptions called for large quantities of morphine—8 to 16 drams at a time—to be used 'as directed', while the directions left the recipient free to use the drug virtually as he pleased. His charges...