Freeman v. United States

• Citation: 86 F.2d 243
• Decision Date: 18 November 1936
• Docket Number: No. 8111.,8111.
• Parties: FREEMAN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

86 F.2d 243 (1936)

FREEMAN v. UNITED STATES.^*

No. 8111.

Circuit Court of Appeals, Fifth Circuit.

November 18, 1936.

Roy S. Drennan and Robert B. Giles, both of Atlanta, Ga., for appellant.

Lawrence S. Camp, U. S. Atty., and J. E. Mundy and M. Neil Andrews, Asst. U. S. Attys., all of Atlanta, Ga.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

The appellant, convicted on twelve counts of an indictment charging violations of section 2 of the Harrison Anti-Narcotic Act (26 U.S.Code § 1044, 26 U.S.C.A. § 1044), assigns as error the action of the trial court in overruling his demurrer to each of the counts. By the demurrer, the contention was made that the allegation in each count, "in the course of his professional practice only," was a conclusion of the pleader, since it did not negative the various circumstances necessary to constitute an administration in the course of his professional practice or allege the existence of conditions which rendered the use of the drug unprofessional and in bad faith.

The allegation assailed is in the language of the statute, which is ordinarily sufficient. More particularity in this indictment was not required in order fully to advise the defendant of the nature and cause of the accusation against him. The objection here is not different from that presented in Glatzmayer v. United States (C.C.A. 5) 84 F.(2d) 192. In that case the allegation was held to charge an ultimate fact and not a mere conclusion. We find no error in the action of the court in overruling the demurrer.

An assignment is predicated on the action of the Government in offering for the purpose of identification a number of prescriptions issued by appellant to persons not named in the indictment, some of which were not introduced in evidence. Appellant contends that he was prejudiced by the parade of these prescriptions before the jury. It appears from the evidence that the prescriptions were identified for the purpose of introduction in evidence, but the court, to save time, limited the number actually introduced because it considered that number sufficient and the others merely cumulative. The matter was within the discretion of the trial court, which may be fairly exercised in order to prevent unnecessary delay or prolixity in presenting the facts of a case to the jury.

The prescriptions issued to parties other than those named in the indictment were admitted for the purpose of showing the intention and state of mind of appellant at the time they were issued, and their consideration was so limited upon their admission and in the instructions to the jury. They were relevant and material evidence upon the issue of appellant's good faith. Dysart v. United States (C.C.A.) 270 F. 77, and Williams v. United States (C.C.A.) 294 F. 682.

Other assignments relate to the refusal of the court to direct a verdict of acquittal on the ground that the evidence showed that the prescriptions were issued in the course of appellant's professional practice. Under these assignments it is insisted that the prescriptions themselves appear to have been so issued, and therefore satisfy the Narcotic Act, as a revenue measure, and that to construe the act as authorizing judicial inquiry into the...