297 F. 20 (8th Cir. 1924), 6047, Jackson v. United States

Docket Nº:6047.
Citation:297 F. 20
Case Date:March 11, 1924
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 20

297 F. 20 (8th Cir. 1924)




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).

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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...

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