Hurwitz v. United States

• Decision Date: 12 May 1924
• Docket Number: 6460.
• Citation: 299 F. 449
• Parties: HURWITZ v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

299 F. 449

HURWITZ v. UNITED STATES.

No. 6460.

United States Court of Appeals, Eighth Circuit.

May 12, 1924

Rehearing Denied July 21, 1924.

R. H Davis, of Joplin, Mo. (Owen & Davis, of Joplin, Mo., on the brief), for plaintiff in error.

S. M Carmean, Sp. Asst. U.S. Atty., of Kansas City, Mo. (Charles C. Madison, U.S. Atty., of Kansas City, Mo., and C. S Walden, Sp. Asst. U.S. Atty., of Joplin, Mo., on the brief), for the United States.

Before STONE and LEWIS, Circuit Judges, and PHILLIPS, District Judge.

LEWIS Circuit Judge.

Dr. Leon Hurwitz was found guilty and sentenced on three indictments, consolidated for trial, each charging him with violation of the act of December 17, 1914, 38 Stat. 785, Comp. Stat. 1916, Sec. 6287h. The crimes charged are defined by the first sentence of section 2 of the act. The first numbered indictment charged a sale of morphine and cocaine on a certain day to Lulu Armstead, not in pursuance of a written order of her on a form issued in blank for that purpose by the Commissioner of Internal Revenue. The other two are in like form for sales of morphine, one sale being to Elenor Zedeker and the other to Sam Bowden. The date of each sale is given and all of them are charged to have been made in Joplin, Mo. Each clearly informed the defendant what he had to meet at the trial. It was not necessary that the exemptions from criminal liability extended by the second section of the act be negatived, and the failure of the pleader to do so did not render them bad. It may be conceded that each indictment contained allegations that need not have been made, but that was surplusage. The demurrers were properly overruled. Manning v. United States (C.C.A.) 275 F. 29; Wallace v. United States, 243 F. 300, 304, 156 C.C.A. 80; Myres v. United States, 256 F. 779, 785, 168 C.C.A. 125; Oakshette v. United States, 260 F. 830, 171 C.C.A. 556; Rothman v. United States (C.C.A.) 270 F. 31.

At the times of all of the sales charged the defendant was registered under the act and could lawfully dispense the drugs in the course of his professional practice only. It will be convenient to dispose of the alleged sales to Zedeker and Bowden first. Elenor Zedeker was an addict, of bad moral repute and in the city jail in July, 1920. A narcotic agent and police officers talked with her while she was in jail and arranged with her to go and buy the drug if they would let her out. The narcotic agent gave her two marked dollars. She was permitted to go. They followed her. She first went to a negro cabin but was not able to buy it there. She then went to the doctor's office. They followed her, and when she came downstairs from his office onto the street she delivered to them a small quantity of morphine. The narcotic agent and the police officers, or some of them, then went into the doctor's office and recovered from him the two marked dollars which had been given to the woman. As against the case thus made the doctor testified that he knew the woman was an addict, that she came into his office and told him that she had been in jail for four days and had not had a dose of medicine, that she was in a very nervous condition, that she gave him the two dollars, for which he was preparing to administer the drug hypodermically, that he poured it on a piece of paper on the desk, took his syringe and started across the room for water to be used in the syringe in administering the drug, and as he turned around he observed that she had gone and taken the morphine with her. The whole case thus rested on the testimony of the woman and the doctor, as to whether the sale was in violation of the act or whether, on the doctor's part, it was intended to be administered in the course of his professional practice only. The court clearly stated that issue to the jury. Then, after calling their attention to the claim that she was a woman of bad character and had been convicted of burglary and larceny the court proceeded:

'It is for you gentlemen to say whether the facts presented to you in relation to the Zedeker woman would successfully impeach her so that you should disregard her testimony. Before you consider that she is successfully impeached you should take into consideration all of the testimony because you must know that one is unworthy of belief before disregarding his testimony. Ordinarily one guilty of untruths and guilty of offenses which would shake your confidence in his truth and veracity might not be believed, yet the worst offender may tell the truth, and it is for you gentlemen to determine whether or not the Zedeker woman is telling the truth, and, in determining whether or not you should reject her testimony as wholly unworthy of belief you will take into consideration the question whether or not she was corroborated. For instance, she says the officers gave her a one-dollar bill and a silver dollar, she says it and they say it, and both the silver and the paper money had been marked for identification. Now, according to the testimony and the admitted facts, this money was found on Dr. Hurwitz's person, in his pocket, at the time the officers went there and arrested him. You may take that as a corroborative circumstance. You may go further and take into consideration the statement of the doctor when apprehended that all he had done was to sell a dope-fiend some 'dope.' You may consider the fact that she had the morphine; that she came downstairs with it and having that quantity that the doctor from whom it was taken made no statement concerning that fact at that time and you may take into consideration the fact that the doctor had an opportunity to state that she had taken it that way when his back was turned when he was preparing to treat her. Taking into consideration all of these facts you are to determine whether you will accept or reject her testimony or whether you will take the testimony of Dr. Hurwitz and accept what he says about it.'

This instruction impresses us as erroneous, misleading and prejudicial; because the circumstances called to the attention of the jury were not corroborative of the one issue before them, that is, Did the woman take the drug and leave the office without the doctor's permission while he was preparing to administer it? That was the only disputed fact and the jury was thus misled from the one issue; and because the instruction impresses us as argumentative. Starr v. United States, 153 U.S. 614, 624, et seq., 14 Sup.Ct. 919, 38 L.Ed. 841. The court was, of course, at liberty to comment on the facts, but only in a judicial way with fairness to each side, but this, we think, went beyond that and approached, if it did not enter, the field of an advocate. Furthermore, there was error in advising the jury that they 'must know' that Elenor Zedeker was unworthy of belief before they could disregard her testimony about taking the drug away. If they had a reasonable doubt as to that, the defendant was entitled to the benefit of that doubt based on their estimate of her...