Hawkins v. United States, 8311.

• Decision Date: 01 July 1937
• Docket Number: No. 8311.,8311.
• Citation: 90 F.2d 551
• Parties: HAWKINS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

90 F.2d 551 (1937)

HAWKINS v. UNITED STATES.

No. 8311.

Circuit Court of Appeals, Fifth Circuit.

June 3, 1937.

Rehearing Denied July 1, 1937.

Clint W. Hager, A. Guy Smith, and Hal Lindsay, all of Atlanta, Ga., for appellant.

Lawrence S. Camp, U. S. Atty., and J. Ellis Mundy and A. Sidney Camp, Asst. U. S. Attys., all of Atlanta, Ga., for United States.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

FOSTER, Circuit Judge.

Appellant, a physician, was convicted on eight counts of two indictments, Nos. 14,277 and 14,554, consolidated for trial, which charged various violations of the Harrison Anti-Narcotic Law (as amended, 26 U.S. C.A. §§ 1040-1054, 1383-1391), through the issuing of prescriptions. He was sentenced to imprisonment of 18 months on each count, the sentences to be served concurrently. Error is assigned to the overruling of general demurrers to the indictments.

Except as to names and dates, the various counts are practically identical. Count 1 of indictment No. 14,227, on which appellant was convicted, is typical. Omitting formal parts and surplusage, it charged as follows: That David B. Hawkins on the 12th day of March, 1935, then and there being a physician dispenser in opium, morphine, cocaine, and other narcotic drugs, specified in an Act of Congress approved December 17, 1914, and amendments thereto (26 U.S.C.A. §§ 1040-1054, 1383-1391), and who had duly registered with the collector of internal revenue, and paid the special tax required, did knowingly, willfully, and feloniously barter, sell, dispense, exchange, and give away to one A. E. Holley, a quantity of narcotic drugs, to wit, fifteen grains of morphine sulphate, the said bartering, selling, exchanging, dispensing, and giving away of the aforesaid morphine sulphate not being in pursuance of a written order of the said A. E. Holley on a form issued in blank for that purpose by the Commissioner of Internal Revenue, in manner following, to wit: That the said David B. Hawkins did issue and dispense to said A. E. Holley a certain prescription, in the following words and figures, to wit:

"Rx For Mr. A. E. Holley Age 44 Address 395 Hood St., Atlanta, Ga. Exception 1. Article 85. Morphine Sulph. Grs. XV. 30 H. T. 1/2 Grs. each. Sig. Use as directed. 3 days treatment. David B. Hawkins, M. D. Date March 12, 1935. U. S. Reg. No. 6950."

And the said morphine sulphate was dispensed and distributed by the said David B. Hawkins not in the course of his professional practice only, the said David B. Hawkins intending and believing that said prescription would be filled by the retail dealer in opium, morphine, cocaine, and other narcotic drugs under the provisions of the act aforesaid, and which said prescription was filled by DeLamater's Pharmacy (Ira DeLamater), in the possession of the aforesaid A. E. Holley as then and there intended by said David B. Hawkins.

In response to a motion of plaintiff, a bill of particulars was filed, which alleged substantially as to each count: That the said David B. Hawkins, hereinafter called the defendant, at the time and place alleged in said indictment, dispensed and distributed the quantity of morphine sulphate stated in said indictment to the person named in said indictment and in the prescription exemplified therein, not in the course of defendant's professional practice only in that the said morphine sulphate was dispensed and distributed by defendant to the dispensee named in said count and said transaction in bad faith without regard to the cure or alleviation of any malady of which said dispensee was then and there suffering and only for the purpose of satisfying the craving of the said named dispensee for narcotic drugs.

Appellant relies upon the case of Linder v. U. S., 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819, 39 A.L.R. 229. There is no doubt that case ruled that a physician may lawfully prescribe narcotics for an addict purely because of his addiction, provided the amount is not so large as to put it within the power of the addict to sell part of the drug in violation of the Harrison Act, which is to be strictly construed as a revenue measure. In that case the amount prescribed was one tablet of morphine and three tablets of cocaine. The number of grains of the drug in each tablet was not shown, but it may be assumed that a single tablet of morphine was not more than enough for one dose. Because of the small quantity prescribed it was held that the indictment did not charge a crime. We do not consider the Linder Case controlling as applied to the prescriptions specified in the indictments in this case. Each prescription was for at least fifteen grains. Narcotic regulation No. 85,¹ incorporated in the prescription by reference, allows a physician to prescribe narcotics for a bona fide patient suffering with an incurable disease or for an aged and infirm addict whose collapse would result from a withdrawal of the drug. Indorsing exception No. 1 on a prescription indicates that the physician has prescribed for a patient suffering with an incurable disease. However, the regulation and the terms of the act do not grant immunity to a physician unless the prescription is issued in good faith, in the course of his professional practice, to a bona fide patient. We consider fifteen grains of morphine was enough to present a question of fact as to the good faith of the doctor to be decided by the jury and the indictments were not demurrable on that point. The indictments in this case were sufficient in form to charge an offense under the statute. It was not error to overrule the demurrers. Glatzmayer v. U. S. (C.C.A.) 84 F.(2d) 192, and authorities therein cited.

Error is assigned to the denial of a motion for a directed verdict of acquittal. The case was submitted to the jury on conflicting evidence. Of the counts upon which appellant was convicted, counts 1, 2, 3, and 4 of indictment 14,277 alleged prescriptions given to one A. E. Holley. Counts 9 and 10 of the same indictment alleged prescriptions given to one Roy Nash and counts 3 and 4 of indictment 14,554 alleged prescriptions given to one Ruth Spann. It was shown that appellant had issued over 500 prescriptions, each for at least fifteen grains of morphine, to addicts, all of which were filled.

Appellant Dr. Hawkins, testified, in substance, that he had known Holley for a long time as a morphine addict, but he had no knowledge of any other doctor's examination of Holley; that Holley suffered from chronic pulmonary tuberculosis and frequently had hemorrhages from the lungs in his presence. As to Holley's tubercular condition, he was confirmed by a diagnosis made by other doctors by examining Holley's sputum and X-ray pictures. He testified, in substance, that he also diagnosed Holley as having endo-carditis and indications of nephritis and colitis; that he considered tuberculosis and endo-carditis incurable and he believed that if he withdrew the morphine the heart condition and tuberculosis would be exaggerated. There was evidence tending to show that he gave Mrs. Holley a prescription for her husband and she tried to smuggle morphine to him while he was in jail. Appellant testified that he believed Holley was at that time at home flat on his back.

On the other hand, Dr. Nellans, connected with the Veterans' Hospital, testified, in substance, that he examined Holley in 1935; that Holley was admitted to the hospital for stomach trouble and said he was a morphine addict; that Holley received no morphine while in the hospital; that there was a complete physical examination of Holley; that the diagnosis was a spastic colon; that Holley left the hospital because he was not receiving narcotics. Dr. Mestre, pathologist and Roentgenologist at the Veterans' Hospital, made a fluoroscopic examination of Holley, found no pulmonary diseases, no heart, lung, or blood trouble and no ailment requiring morphine. Holley had a bleeding trouble in the large intestine indicating colitis and moderate...