Brown v. United States, No. 16536.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE, JONES and BROWN, Circuit
Citation250 F.2d 745
Decision Date08 February 1958
Docket NumberNo. 16536.
PartiesThomas Guy BROWN, Appellant, v. UNITED STATES of America, Appellee.

250 F.2d 745 (1958)

Thomas Guy BROWN, Appellant,
v.
UNITED STATES of America, Appellee.

No. 16536.

United States Court of Appeals Fifth Circuit.

January 3, 1958.

Rehearing Denied February 8, 1958.


Ben Monning, Jr., Monning & Monning, Amarillo, Tex., for appellant.

Heard L. Floore, U. S. Atty., Fort Worth, Tex., William J. Risteau, Atty., Dept. of Health, Education, and Welfare, Washington, D. C., of counsel, for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from the conviction of a physician for the violation of provisions of the Food, Drug and Cosmetic Act that prohibits the dispensing of certain potentially harmful drugs, transported in interstate commerce, without a prescription.

The evidence fully warranted the jury's finding that the appellant, a practicing physician in Dumas. Texas, sold to two Federal agents, whom he supposed to be truck drivers, three separate lots of dextro-amphetamine hydrochloride tablets1 that had been shipped in interstate commerce; that prior to dispensing them Dr. Brown had not prepared or given them any prescription and had not physically examined either of them and had not questioned them or "prescribed" a dosage or otherwise attempted to acquaint himself with either the physical condition or needs of either man.

The statute under which the three-count indictment was brought makes illegal and punishable as for a misdemeanor, under circumstances here present, a violation of the following provisions of 21 U.S.C.A. § 353(b) (1):

"A drug intended for use by man which * * *.
"(B) Because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such a drug;
* * * shall be dispensed only (i) upon a written prescription of a practitioner licensed by law to administer such drug, or (ii) upon an
250 F.2d 746
oral prescription of such practitioner which is reduced promptly to writing and filed by the pharmacist, or (iii) by refilling any such written or oral prescription if such refilling is authorized by the prescriber either in the original prescription or by oral order which is reduced promptly to writing and filed by the pharmacist. The act of dispensing a drug contrary to the provisions of this paragraph shall be deemed to be an act which results in the drug being misbranded while held for sale." 21 U.S.C.A. § 353(b) (2).

Although the appellant denies the sales, implying that the transactions with the two agents were of quite a different nature, he makes no contention that there was not sufficient evidence to sustain the conviction if the terms of this statute reach a regularly licensed physician who sells these covered drugs under the circumstances outlined. The burden of his defense is that the provisions of the Act do not apply to the act of dispensing drugs by a licensed physician.

No decided case in which an appellate court has precisely held this law applicable to the conduct of a regularly licensed physician has been called to our attention. The Court of Appeals for the Tenth Circuit affirmed a conviction of one who held himself out to be a doctor, but who had not obtained a...

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9 practice notes
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 28 Julio 2009
    ...Circuit's conclusion that an invalid prescription is not a prescription within the meaning of § 353(b) at all. See Brown v. United States, 250 F.2d 745 (5th Cir.1958). In Brown, a physician sold controlled substances to two undercover federal agents without having "given them any prescripti......
  • U.S. v. Munoz, No. 03-16216.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 23 Noviembre 2005
    ...Whether a drug allegedly distributed in violation of the FDCA is a prescription drug is a question for the jury. Brown v. United States, 250 F.2d 745, 747 (5th At trial the government presented evidence that: (1) the active ingredients of both Power Gel and Vigor were prescription drugs not......
  • White v. United States, No. 19014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 9 Julio 1968
    ...appellant wanting, and, in light of the testimony, it is difficult to disagree with the finding of the jury. In Brown v. United States, 250 F.2d 745 (5 Cir. 1958), certiorari denied, 356 U.S. 938, 78 S.Ct. 779, 2 L.Ed.2d 812, rehearing denied 357 U.S. 933, 78 S.Ct. 1368, 2 L.Ed.2d 1376 (195......
  • U.S. v. Nazir, No. 01-1029-CR.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 16 Julio 2002
    ...precedent on similar issues. Turning back to the statute at issue here, the Fifth Circuit examined § 353(b)(1) in Brown v. United States, 250 F.2d 745, 746-47 (5th Cir.1958), where a doctor was convicted for giving undercover agents certain drugs without preparation, written prescription, o......
  • Request a trial to view additional results
9 cases
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 28 Julio 2009
    ...Circuit's conclusion that an invalid prescription is not a prescription within the meaning of § 353(b) at all. See Brown v. United States, 250 F.2d 745 (5th Cir.1958). In Brown, a physician sold controlled substances to two undercover federal agents without having "given them any presc......
  • U.S. v. Munoz, No. 03-16216.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 23 Noviembre 2005
    ...Whether a drug allegedly distributed in violation of the FDCA is a prescription drug is a question for the jury. Brown v. United States, 250 F.2d 745, 747 (5th At trial the government presented evidence that: (1) the active ingredients of both Power Gel and Vigor were prescription drugs not......
  • White v. United States, No. 19014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 9 Julio 1968
    ...appellant wanting, and, in light of the testimony, it is difficult to disagree with the finding of the jury. In Brown v. United States, 250 F.2d 745 (5 Cir. 1958), certiorari denied, 356 U.S. 938, 78 S.Ct. 779, 2 L.Ed.2d 812, rehearing denied 357 U.S. 933, 78 S.Ct. 1368, 2 L.Ed.2d 1376 (195......
  • U.S. v. Nazir, No. 01-1029-CR.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 16 Julio 2002
    ...precedent on similar issues. Turning back to the statute at issue here, the Fifth Circuit examined § 353(b)(1) in Brown v. United States, 250 F.2d 745, 746-47 (5th Cir.1958), where a doctor was convicted for giving undercover agents certain drugs without preparation, written prescription, o......
  • Request a trial to view additional results

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