Aiton v. United States

• Decision Date: 16 February 1925
• Docket Number: No. 4357.,4357.
• Citation: 3 F.2d 992
• Parties: AITON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

3 F.2d 992 (1925)

AITON v. UNITED STATES.

No. 4357.

Circuit Court of Appeals, Ninth Circuit.

February 16, 1925.

Benton Dick and Arthur L. Goodman, both of Phœnix, Ariz., for plaintiff in error.

Geo. T. Wilson, Asst. U. S. Atty., of Phœnix, Ariz.

Before ROSS, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment of conviction under the Harrison Narcotic Act (Comp. St. §§ 6287g-6287q). The indictment contains numerous counts, but, inasmuch as a conviction was had under the first count alone, a reference to the others becomes unnecessary.

The first count charges that the plaintiff in error, who was then and there a practicing physician, and duly registered with the collector of internal revenue for the district of Arizona as a physician under the provisions of the Act of December 17, 1914, as amended by the Act of February 24, 1919 (Comp. St. Ann. Supp. 1919, § 6287g), did then and there unlawfully, willfully, knowingly, and feloniously, and contrary to the Act of Congress aforesaid, issue and write and deliver a prescription to one George Warner for a quantity of morphine sulphate, to wit, 56 grains of morphine sulphate, not in good faith for meeting the needs of the said George Warner, not to effect a cure of the said George Warner in the course of his professional practice only, the said George Warner being then and there an habitual user of and addicted to the use of such narcotic drugs, nor to treat the said George Warner then and there suffering from an incurable or chronic disease in the course of his professional practice only, but, on the contrary, with the intent and purpose to dispense, distribute, barter, and sell such narcotic drugs for the purpose of catering to and satisfying the cravings of said George Warner for such drug.

The plaintiff in error demurred to the indictment, and moved in arrest of judgment after verdict, upon the ground that the first and other counts of the indictment did not state facts sufficient to constitute a public offense. The rulings on the demurrer and the motion in arrest are assigned as error.

The indictment states upon its face that it is based upon section 1 of the Act of December 17, 1914 (Comp. St. § 6287g). But the government concedes that this reference is a mistake and that the reference should have been to section 2 (Comp. St. § 6287h). It would be as difficult to sustain the indictment under the latter section as under the former. Section 2 declar...