Doremus v. United States

• Citation: 262 F. 849
• Decision Date: 17 February 1920
• Docket Number: 3412.
• Parties: DOREMUS v. UNITED STATES. [*]
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

262 F. 849

DOREMUS v. UNITED STATES. ^[*]

No. 3412.

United States Court of Appeals, Fifth Circuit.

February 17, 1920

C. A Davies and Haltom & Haltom, all of San Antonio, Tex., for plaintiff in error.

Hugh R Robertson, U.S. Atty., of San Antonio, Tex.

Before WALKER, Circuit Judge, and GRUBB and JACK, District Judges.

GRUBB District Judge.

The plaintiff in error was convicted in the District Court of the United States for the Western District of Texas, for alleged violations of the Harrison Narcotic Law (Act Cong. Dec. 17 1914 (Comp. St. Secs. 6287g-6287q)), under an indictment containing 12 counts. Conviction was had under the first ten counts. The plaintiff in error was a physician and duly registered as such with the collector of internal revenue and had paid the tax. He was charged with having unlawfully and willfully aided and abetted certain named druggists in making illegal sales of morphine and cocaine, by giving the persons to whom the sales were alleged to have been made prescriptions, which were by them presented to the druggists and filled by the druggists. The filling of the prescriptions was alleged to constitute the illegal sales, which the plaintiff in error was charged with having aided and abetted. The persons to whom the prescriptions were issued were at liberty to have them filled by any druggist selected by them.

There was no preconcert between the physician and druggists charged. It was charged that the plaintiff in error contemplated that his prescriptions would be filled by druggists who knew that they were issued to gratify the appetite of addicts for the drugs, and not for the alleviation of suffering or the cure of disease. The illegality in the sale is charged to have consisted in the fact that the sale was made neither to one who had or was entitled to have an order blank, nor was it made upon the prescription of a physician within the meaning of exception (b) of section 2 of the Harrison Act. That exception is as follows:

'To the sale, dispensing or distribution of the aforesaid drugs by a dealer to a consumer under and in pursuance of a written prescription issued by a physician * * * registered under this act.'

The indictment is questioned upon the idea that it alleged that the drugs were furnished by the druggists upon written prescriptions of the plaintiff in error, a registered physician, who had paid the tax, and hence that they were within the terms of the exception, and that, as no crime was committed by the druggist, no aiding and abetting could be charged against the physician. The indictment also charged in effect that the prescriptions were issued by the physician with the purpose of gratifying the appetite of the addict, and with no intent to cure disease or alleviate suffering, and that this was known to the druggist when he filled the prescription. The question is presented whether a prescription issued under such circumstances is covered by the exception. This question has been determined by the Supreme Court in the case of Webb v. United States, 249 U.S. 96-99, 39 Sup.Ct. 217, 63 L.Ed. 497. The Supreme Court answered the following question, which was certified to it, in the negative:

'If a practicing and registered physician issues an order for morphine to an habitual user thereof, the order not being issued by him in the course of professional treatment in the attempted cure of the habit, but being issued for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use, is such order a physician's prescription under exception (b) of section 2.'

The Supreme Court said:

'As to question 3 (the one just set out)-- to call such an order for the use of morphine a physician's prescription would be so plainly a perversion of meaning that no discussion of the subject is required. That question should be answered in the negative.'

If a prescription issued under such circumstances is not a prescription protected by exception (b) of section 2 of the act, then the druggist who fills it, knowing the purpose and circumstances under which it was issued, makes a sale in violation of the law; i.e., one not on an order blank, and not in pursuance of a prescription. The physician who issues the prescription for the purpose mentioned, knowing it is to be filled by a druggist who knows of its illegality, aids and abets the druggist in violating section 2 of the act by the making of an illegal sale. The cases of United States v. Doremus, 249 U.S. 86, 39 Sup.Ct. 214, 63 L.Ed. 493, and Webb v. United States, 249 U.S. 96, 39 Sup.Ct. 217, 63 L.Ed. 497, sustain the indictment.

The motion of the plaintiff in error for a directed verdict was properly denied, for the reasons given for sustaining the indictment.

Plaintiff in error also complained of the court's oral charge and of the action of the court in modifying a requested instruction of the plaintiff in error. These two complaints present a single question. The court charged the jury that if the druggists who filled the prescriptions-- 'either had knowledge of the facts mentioned or had such information, gained from facts and circumstances surrounding the transaction as that it would be their duty, under the circumstances and situated as they were, to exercise a reasonable degree of precaution such as a reasonably prudent person, desirous of obeying the law, would adopt under like or similar circumstances surrounding...