Jackson v. United States

• Decision Date: 11 March 1924
• Docket Number: 6047.
• Citation: 297 F. 20
• Parties: JACKSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

297 F. 20

JACKSON v. UNITED STATES.

No. 6047.

United States Court of Appeals, Eighth Circuit.

March 11, 1924

William G. Lynch, of Kansas City, Mo., for plaintiff in error.

Charles C. Madison, U.S. Atty., of Kansas City, Mo. (C. S. Walden Asst. U.S. Atty., of Joplin, Mo., on the brief), for the United States.

Before SANBORN and KENYON, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge.

The plaintiff in error, a physician, hereafter called defendant was tried under an indictment, charging in each of 19 separate counts, a violation of the Harrison Act (38 Stat 785 (Comp. St. Secs. 6287g-6287q)), as amended by sections 1006, 1007, 40 Stat. 1130 (Comp. St. Ann. Supp. 1919, Secs 6287g, 6287l).

He was found guilty and sentenced under 14 of the counts. The charges made against him were the unlawful sales of derivatives of opium and of coca leaves, not in pursuance of written orders on proper forms from the purchasers, by selling and dispensing the drugs to the purchasers by means of written prescriptions issued by the defendant; the purchasers not being patients of the defendant, and the drugs not being dispensed and distributed in the course of the defendant's professional practice.

The contentions made relating to the convictions under counts 11 to 19, inclusive, in different forms present the question whether there was a fatal variance between the allegations of the indictment and the evidence, as to the persons to whom the sales are alleged to have been made. There was evidence given under these counts on behalf of the United States tending to show that the defendant was a practicing physician at Kansas City, Mo., and that he left at a drug store in Kansas City a large number of prescriptions for morphine sulphate and cocaine hydrochloride, to be used by the druggist indiscriminately whenever an applicant for such drugs desired to procure them. The evidence tended to show that these prescriptions were left blank as to the amount of the drugs, and these amounts were filled in by the druggist according to the request of the purchasers, and that the defendant and the druggist had an arrangement, by which the druggist was to collect from the purchasers, in addition to the price charged for the drugs, an amount for the defendant as his charge for the prescription, and that the amount was turned over to the defendant from time to time. These prescriptions were used as a cover for the sale of the drugs to drug addicts as a means of gratifying their cravings, and there is no claim that this procedure was not an unlawful sale by the defendant, under the rules announced in the decision in Jin Fuey Moy v. United States, 254 U.S. 189, 41 Sup.Ct. 98, 65 L.Ed. 214, although the defendant as a witness disputed some of the government's testimony given against him. The variance which he claims to exist between the allegations and the proofs arises in this way: The indictment charges in the eleventh count a sale by the defendant 'to one William Long, whose true name other than as above stated is to these grand jurors unknown. ' Each of the counts following the eleventh charges a sale to some other person in the same language, except that a different name is alleged. The proofs on behalf of the government showed that some person came into the drug store and procured the drugs named in each of these prescriptions. The purchaser stated the amount of drugs he required, and the druggist produced one of the prescriptions that the defendant had left with the druggist, filled in the blank space on the prescription as to the amount, required the purchaser to sign the same name on the back of the prescription that the defendant had written in the prescription, and when that was done the druggist gave the purchaser the amount called for, collected the money for the drugs and the prescription, received back the prescription, and delivered the drugs to the purchaser. The druggist testified that in each of these cases he did not know who purchased the drugs, except that the purchaser wrote the same name on the back of the prescription that was upon its face. There was no evidence offered to show the real name of these purchasers. The defendant claims that it was a variance to prove a sale to a person whose name was not proved, even if he used the name alleged in receipting for the prescription. If this was a variance, as to the name of the person described in the indictment as the purchaser, the rule is now established that as to a variance between the allegations and the proof of the name of third persons alleged in an indictment, the...