Du Vall v. United States, 7908.

• Decision Date: 02 March 1936
• Docket Number: No. 7908.,7908.
• Parties: DU VALL v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

82 F.2d 382 (1936)

DU VALL v. UNITED STATES.^*

No. 7908.

Circuit Court of Appeals, Ninth Circuit.

March 2, 1936.

Leslie C. Hardy, of Phoenix, Ariz., and Otto E. Myrland, of Tucson, Ariz., for appellant.

F. E. Flynn, U. S. Atty., of Phoenix, Ariz., and K. Berry Peterson, Asst. U. S. Atty., of Tucson, Ariz., for appellee.

Before WILBUR, GARRECHT, and HANEY, Circuit Judges.

WILBUR, Circuit Judge.

The appellant, a physician, was charged in each of two counts of an indictment with selling morphine sulphate, a derivative of opium, to Pat Rooney, an addict. The first count charges the sale of four grains on March 26, 1935, and the second count charges the sale of three grains on the same day. After alleging the sale of the opium derivative, the indictment alleges that the sale was not in pursuance of a written order to the addict on the blank provided by the Commissioner of Internal Revenue; that the appellant issued a prescription for the four grains of morphine sulphate; and that Pat Rooney was not a patient of the appellant and that the morphine sulphate was dispensed and distributed by appellant "not in the course of his professional practice only." The second count is identical in form and substance other than as to the amount of the morphine sulphate. The appellant was convicted on both counts and sentenced to fourteen months imprisonment in the penitentiary and to pay a fine of $500 upon each count, the sentences to run concurrently.

The appellant's first point is thus stated in his brief:

"The indictment is fatally defective because it (a) fails to allege that Rooney obtained the drug on the prescriptions or that a sale of the drug was made otherwise by appellant and (b) because the indictment does not disclose that appellant committed the offense of depriving the government of revenue as provided by the Harrison Narcotic Act as amended, 26 U.S.C.A. §§ 1040-1054, 1383-1391."

Appellant relies upon a decision by this court in Aiton v. United States, 3 F.(2d) 992, and upon Strader v. United States (C. C.A.10) 72 F.(2d) 589. The indictment in each of those cases was entirely different from that involved here, for in the case at bar the indictment specifically charges a sale. The allegations in regard to the prescription are for the purpose of specifying the manner in which the sale was accomplished. The allegation that the appellant sold the morphine is equivalent to an allegation that the prescription was filled. Hood v. United States (C.C.A.) 76 F.(2d) 275; United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619.

It is unnecessary to allege that the appellant deprived the government of revenue. Barbot v. United States (C.C.A.4) 273 F. 919; Bush v. United States (C.C.A. 5) 16 F.(2d) 709.

The indictment conforms to the one approved by the Supreme Court in Jin Fuey Moy v. United States, 254 U.S. 189, 192, 41 S.Ct. 98, 65 L.Ed. 214.

Appellant claims that there is a variance between the proof and the indictment in that the indictment charges the sale to Rooney and the evidence shows a sale to agent Moore. It is therefore claimed that the court erred in denying appellant's motion for verdict of acquittal. This assignment of error cannot be considered because all the evidence upon that subject is not contained in the bill of exceptions. O'Brien's Manual of Federal Procedure, p. 43; Smith v. United States (C.C.A.9) 9 F.(2d) 386; United States v. Densmore (C.C.A.) 58 F.(2d) 748, 751. Indeed, the appellant states in his brief that "the sufficiency of the evidence to sustain the verdict is not urged because the errors assigned, if meritorious, would defeat the judgment regardless of the sufficiency of the evidence to sustain it." We think it clear, however, from the evidence that is contained in the bill of exceptions that the sale was to Rooney. A narcotic agent furnished the money to Rooney, the sale was actually made to Rooney and for his use, and the allegation in that regard was sustained by the evidence.

The next assignment of error is that the court erred in instructing the jury relative to article 85, §§ 1 and 2, of the Regulations of the Commissioner of Internal Revenue, for the reason that the regulation is void and also because the instructions on that subject were contradictory and conflicting. Appellant's only exception to the charge was made in response to a question by the court as follows:

"Are there any exceptions to be noted?

"Mr. Hardy: We have no others to submit, but for the purpose of the record, as we are required to do, and which has been heretofore raised, we do take exceptions to that part of your Honor's charge with respect to the moral aspect of the Harrison Narcotic Act and also with respect to the regulations thereunder, in so far as they are unconstitutional and are in conflict with the Harrison Act."

We have frequently pointed out that an exception to a charge must state the ground of the exception in order that the trial court may consider the same, so that if the objection is deemed by the court to be a valid objection, it may make the appropriate correction in the instructions. An exception which merely excepts to a particular part of the charge by referring to the subject-matter is insufficient for the reason that it does not inform the court as to the ground of the objection. O'Brien's Manual of Fed. Proc., p. 20, Supplement, p. 22; Sacramento, Suburban Fruit Lands Co. v. Loucks (C.C.A.) 36 F.(2d) 921; Sacramento Suburban Fruit Lands Co. v. Johnson (C.C.A.) 36 F.(2d) 925; Royal Finance Co. of California v. Miller (C.C. A.) 47 F.(2d) 24; State Life Ins. Co. v. Sullivan (C.C.A.) 58 F.(2d) 741; Fidelity & Casualty Co. of New York v. Griner (C.C.A.) 44 F.(2d) 706; Arnold v. United States (C.C.A.) 75 F.(2d) 144; Pacific S. S. Co. v. Holt (C.C.A.) 77 F.(2d) 192. It is no more definite in regard to the ground upon which the instruction is challenged than a reference to the instruction by a paragraph. So far as the point now under consideration is concerned, the exception reads as follows: "* * * With respect to the regulations thereunder Harrison Narcotic Act in so far as they are unconstitutional and are in conflict with the Harrison Act." It may perhaps be said that this exception states that the defendant objects to the inclusion in the charge of the regulations "in so far as they are unconstitutional and are in conflict with the Harrison Act," but it was the duty of the appellant in his exception to call attention to the particular features of the regulation which he claims were unconstitutional or in conflict with the Harrison Narcotic Act. This he failed to do. Furthermore, the trial court fully and correctly instructed the jury upon the question of the right of the appellant as a physician to prescribe morphine for his patients and these instructions are not criticized. They conform with the rule established by the Supreme Court in Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819, 39 A.L.R. 229, and Boyd v. United States, 271 U.S. 104, 46 S.Ct. 442, 70 L.Ed. 857. The court informed the jury over and over again that if the prescriptions were issued in good faith according to fair medical standards and in the cause of professional treatment, the appellant was not guilty. We quote one portion of the instructions on that subject, as follows:

"If the prescriptions were issued in good faith and according to fair medical standards, in the curing of disease, and not merely to satisfy the cravings of the said persons for such drug, then they may be said to have been issued in the course of the defendant's professional practice only; but if the prescriptions were not issued in good faith, but were issued to enable such person to obtain morphine sulphate to satisfy his appetite and cravings for such drugs only, and not in the treatment of his patient, then the issuance of such prescriptions would not be in good faith nor in the course of the defendant's professional practice as a physician, and the sale and dispensing upon such prescriptions would not be lawful."

Furthermore, although the court in its charge quoted the departmental regulation authorizing the supplying of morphine to "aged or infirm addict whose collapse would result from the withdrawal of the drug, provided he endorsed on the prescription that the patient is aged and infirm giving age, or if he prefers he may endorse Exception 2, Article 85," the jury was nevertheless instructed to acquit notwithstanding the fact that the addict in the case at bar was only thirty-one years of age, if the prescription was made in good faith and in the course of the professional practice of the physician. This was correct.

The appellant complains that because of the quotation of the regulation in the instructions they were confusing and contradictory. The instructions were very full and elaborate covering 26 pages of the transcript. It is sufficient to say without the quotation of the instructions as a whole that we see no possibility of the jury going astray upon the question because of the quotation of the regulation. The court did not tell the jury that they were to convict if the regulations were violated. The appellant had written upon his prescription the words "Exception 1, Article 85," relating to the treatment of cancer and certain other diseases therein specified. If the defendant had intended to rely upon the fact that he was treating an addict for his disease of addiction, the indorsement "Exception 1, Article 85" was not appropriate.

Appellant assigned (rule 11) and specified as error in his brief (rule 24) the charge to the jury that "one of the objects of the Narcotic Act was no doubt intended to prevent the growing use of these narcotics deemed a menace to the nation by Congress. If a physician and the others mentioned in the exceptions could sell and dispense these narcotics regardless of the fact whether it be done in good faith for the relief of a patient, then the moral object...