300 F. 321 (6th Cir. 1924), 4015, Simmons v. United States

• Docket Nº: 4015.
• Citation: 300 F. 321
• Party Name: SIMMONS v. UNITED STATES.
• Case Date: July 02, 1924
• Court: United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 321

300 F. 321 (6th Cir. 1924)

SIMMONS

v.

UNITED STATES.

No. 4015.

United States Court of Appeals, Sixth Circuit.

July 2, 1924

A. M. Tillman, of Nashville, Tenn. (Tillman & McCall, of Nashville, Tenn., on the brief), for plaintiff in error.

Howard B. Shofner, Asst. U.S. Atty., of Nashville, Tenn. (A. V. McLane, U.S. Atty., of Lewisburg, Tenn., on the brief), for the United States.

Before DENISON and DONAHUE, Circuit Judges, and TUTTLE, District judge.

DENISON, Circuit Judge.

Dr. Simmons, a practicing physician at Nashville, Tenn., was convicted of furnishing morphine in violation of the Harrison Anti-Narcotic Act (Comp. St. Secs. 6287g-6287q). It appeared that during the period of nine months he had given to 108 persons, all of whom were morphine addicts, a total of

Page 322

4,095 prescriptions, calling for 79,592 grains of morphine. It was his custom to recognize 8 grains per day as a maximum, and to give prescriptions intended to cover this supply for a period of six days. The case was tried shortly after the decision in U.S. v. Behrman, 258 U.S. 280, 42 Sup.Ct. 303, 66 L.Ed. 619, and, although that case is referred to in the record, the trial does not seem to have been conducted upon the theory of the statute which that case established. Under that theory, and upon the undisputed facts, as stated by Dr. Simmons himself as a witness in his own behalf, he was plainly guilty, and, as we said in the recent similar case of Hobart v. U.S., 299 F. 784, decided May 16, 1924, a conviction in such a case will not be set aside, even if there were errors which would require reversal in a doubtful case.

Complaint is made that, as to the particular matters specified in the counts upon which conviction was had, the case made was one of entrapment. The prescriptions were given to an addict who was in the pay of the government, and acting in fact as a detective. The record does not show any forbidden entrapment, as that has recently been discussed by us. Billingsley v. U.S., 274 F. 86, 89; Browne v. U.S., 290 F. 870, 873. Indeed, the conceded volume of the defendant's business of this type is so conclusive of his intent that the entrapment defense does not call for serious consideration.

After the passage of the Harrison Act, it was believed by some that a physician continued to be at liberty to prescribe for morphine addicts sufficient quantities to keep...