Miller v. United States

• Decision Date: 17 February 1923
• Docket Number: 3899.
• Citation: 287 F. 864
• Parties: MILLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

287 F. 864

MILLER v. UNITED STATES.

No. 3899.

United States Court of Appeals, Fifth Circuit.

February 17, 1923

Rehearing Denied March 23, 1923.

S. D Redmond, of Jackson, Miss., and W. H. Powell, of Canton Miss., for plaintiff in error.

E. E Hindman, U.S. Atty., and Chalmers Potter, Asst. U.S. Atty., both of Jackson, Miss. (Niles Moseley, Asst. U.S. Atty., of Jackson, Miss., on the brief), for the United States.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

The defendant was convicted upon an indictment under section 2 of the Harrison Narcotic Act, 38 Stat. 785 (Comp. St. Sec. 6287h). The indictment charges that defendant registered and paid the special tax imposed upon physicians, obtained the order forms required by the act, and unlawfully obtained by means of said order forms a quantity of morphine for purposes other than the use, sale, or distribution thereof in the legitimate practice of his profession.

The defendant applied for a change of venue, and supported his motion therefor by an affidavit to the effect that he did not believe he could obtain a fair trial before a jury selected from the division of the district where the trial was had. The District Judge denied the motion, but stated that if, upon actual test, it appeared that an impartial jury could not be obtained in the division where court was then being held, he would then consider the motion. The jury was thereupon impaneled, and only one had heard anything about the case. That juror was excused by the court. No other juror was challenged for cause, and the defendant did not exhaust his peremptory challenges.

Defendant was a physician, and the evidence shows that during the year 1921 he purchased 55 ounces of morphine from several wholesale drug houses in New Orleans and Memphis; that the quantity so purchased was greater than reasonably could be used by a physician in the legitimate practice of his profession. The record kept by defendant accounted for 163 1/4 grains of morphine. Government agents seized the morphine remaining in his possession, and it was introduced in evidence.

The defendant was acquitted upon another indictment, which charged an unlawful sale of morphine to one W. C. Berbette, who was addicted to the use of morphine, and had recently been in an insane asylum. This indictment was consolidated for trial with the indictment under consideration. During the argument defendant's counsel appealed to the jury not to convict on the testimony of 'dope fiends' and government agents, and stated that Berbette was crazy. In reply to this argument, the district attorney used this language: 'Who ran him (Berbette) crazy? It was old Miller, who sold him the stuff that made him crazy'-- and also stated in substance that, if juries would not convict upon the testimony of dope fiends and government agents, they would in effect write the Narcotic Act off the statute books. Defendant excepted, and the court observed that the district attorney was merely replying to the argument of counsel for defendant, and that the jury would be given proper instructions in regard to both arguments. In his charge to the jury, the court gave them the usual caution to render their verdict upon the evidence, and stated that much had been said in argument, probably by both sides, which should not be considered by the jury.

The defendant assigns...