Dysart v. United States
| Decision Date | 11 January 1921 |
| Docket Number | 3458. |
| Citation | 270 F. 77 |
| Parties | DYSART v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Fifth Circuit |
William H. Atwell, of Dallas, Tex., Head, Dillard, Smith, Maxey & Head, of Sherman, Tex., Bradley, Burns, Christian & Bradley of Fort Worth, Tex., and M. W. Stanton, of El Paso, Tex., for plaintiff in error.
Edmund B. Elfers, Asst. U.S. Atty., of El Paso, Tex.
Before WALKER, BRYAN, and KING, Circuit Judges.
Plaintiff in error was convicted for violating section 2 of the so-called Harrison Anti-Narcotic Act. 38 Statutes at Large 785 (Comp. St. Sec. 6287h). The indictment contains eight counts, charging unlawful sales of morphine sulphate. The first seven counts are substantially identical, except that the name of the individual to whom the sale was alleged to have been made is different in each of said counts. The eighth count charged sales to a named individual and divers unknown persons. There was a verdict of guilty as charged in the first count, and not guilty as to the other counts.
Plaintiff in error was a practicing physician, registered under the act, and therefore entitled to dispense and distribute morphine 'in the course of his professional practice,' without making use of the written order on the form prescribed by the Commissioner of Internal Revenue. The evidence shows beyond dispute that plaintiff in error issued within a few months many hundred prescriptions for morphine sulphate to persons addicted to the use of morphine, who came to him, not for medical treatment, but for prescriptions upon which they could secure morphine to satiate their appetites. Usually these prescriptions called for 15 grains of morphine sulphate, and in many instances were issued to the same person almost daily. More than a hundred were filled at one drug store in about a week, and usually, if not always, the drug purported to be prescribed as treatment for consumption. In no single case did the plaintiff in error himself administer the drug, but left it to each patient to use it 'as directed.' Plaintiff in error did not deny, but, on the contrary, admitted, that he issued the prescriptions, for which he made a uniform charge of $1 each.
Several errors were assigned, but plaintiff in error relies in argument almost wholly upon the supposed variance between the offense charged in the indictment and the evidence adduced at the trial. In other words, it is claimed that what plaintiff in error did was to issue prescriptions, and not to sell. This contention has been authoritatively settled adversely to plaintiff in error by the Supreme Court of the United States in the case of Jin Fuey Moy v. United States, 254 U.S. 189, 41 Sup.Ct. 98, 65 L.Ed. . . ., decided December 6, 1920.
Only three of the remaining assignments need be mentioned:
1. Plaintiff in error objected to the following question as leading:
A leading question may be permitted by a trial judge, and his discretion is not assignable as error.
2. Plaintiff...
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