Mitchell v. United States

• Decision Date: 13 July 1944
• Docket Number: No. 2845.,2845.
• Parties: MITCHELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

143 F.2d 953 (1944)

MITCHELL v. UNITED STATES.

No. 2845.

Circuit Court of Appeals, Tenth Circuit.

July 13, 1944.

Harry Seaton, of Tulsa, Okl. (John M. Goldesberry, of Tulsa, Okl., on the brief), for appellant.

Wm. Knight Powers, Asst. U. S. Atty., of Tulsa, Okl. (Whit Y. Mauzy, U. S. Atty., of Tulsa, Okl., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

Appellant, Woodard R. Mitchell, was indicted, tried and convicted of violating the United States Anti-Narcotic Revenue laws. The indictment contained thirteen counts. Counts 1 to 11, inclusive, charged violations of 26 U.S.C.A. Int.Rev.Code, § 2554; Counts 12 and 13 charged violations of 18 U.S.C.A. § 80. Counts 5, 6 and 12 were taken from the jury. Appellant was found guilty on all the remaining counts.

Complaint is made, first, that the court erred in refusing to sustain appellant's demurrers to the indictment and his motion in arrest of judgment, all of which challenged the sufficiency of the indictment; second, that the court erred in refusing appellant's motion for a continuance; third, that the evidence was insufficient in law to sustain a verdict of guilty; and, fourth, that appellant was erroneously deprived of the defense of entrapment as to Counts 1 and 2.

The objections to Counts 1 to 11 are that they failed to state facts sufficient to constitute an offense against the laws of the United States, and that the language is so vague, indefinite and uncertain that it fails to inform appellant of the charge levied against him with sufficient particularity to enable him to prepare his defense.

26 U.S.C.A. Int.Rev.Code, § 2554 in part provides that: "It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs mentioned in section 2550(a)¹ except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary."

Under exceptions 1 and 2 the prohibition does not apply to the dispensation or distribution of such drugs to a patient by a physician, dentist or veterinary surgeon registered under Sec. 3221 of the Act, in the course of his professional practice only, provided that a record of all such drugs dispensed under the exception be maintained, or other dispensation of drugs to patients by prescription, provided that the record of such prescriptions be kept for two years.

Count 1 charges that Woodard R. Mitchell "at the City of Shidler, Osage County, State of Oklahoma, Northern District of Oklahoma and within the jurisdiction of this court, did, on or about the 14th day of June A. D. 1943, wrongfully, unlawfully, fraudulently and feloniously and with intent to defraud the United States of America, and in violation of an Act of Congress commonly known and designated as the Harrison Anti-Narcotic Act, as amended, sell, barter, exchange and furnish to one William Schaefer approximately Fifty Grains of Morphine, * * * which said sale, barter, exchange and furnishing of said morphine was not in pursuance of a written order of the said William Schaefer on a form issued in blank for that purpose by the Commissioner of Internal Revenue, and which said sale, barter, exchange and furnishing of said morphine was not then and there in the course of the professional practice of the said defendant, Woodard R. Mitchell, and was not then and there within any of the exceptions or exemptions provided for in said Act, * * *"

The remainder of the first eleven counts charged the offenses therein alleged in substantially the same language.

The purpose of the indictment is to inform the accused of the offense with which he is charged. This it must do with sufficient clarity to enable him to adequately prepare his defense and to enable him to plead the judgment, if any, in bar of further prosecutions.² The count specifically charged that on or about June 14, 1943, at Shidler, Osage County, Oklahoma, appellant Woodard R. Mitchell, unlawfully, etc., and in violation of the Act, sold William Schaefer approximately fifty grains of morphine and not in pursuance of a written order of William Schaefer on a form issued for that purpose by the Commissioner of Internal Revenue. It is urged in support of the charge of vagueness that it cannot be told whether appellant was being prosecuted as a dealer in the commercial sale of narcotics, for selling without having obtained an order, or whether he was being prosecuted as a physician, chemist, druggist or as one engaged in a profession. This contention is without merit. The Act applies to every one who disposes of these drugs. It is an offense for any one to dispense them except in pursuance of a written order on an official form. The only exceptions are that a registered physician, dentist or veterinary surgeon may dispense such drugs without a written order, but then only when it is done in the course of his professional practice or pursuant to a written prescription of such physician, dentist or veterinary surgeon. The indictment states that the drugs were not dispensed to Schaefer within any of the exceptions or exemptions provided for in the Act. This was certainly sufficient to inform appellant that he was charged with dispensing these drugs in violation of the act in that he did not have the required order and that he did not dispense them either in the course of his professional practice only, nor pursuant to a prescription. Sec. 2554 does not apply alone to those who are required to register under Sec. 2553, but to every one.³ It applies to physicians, dentists and veterinary surgeons except when they bring themselves within the specific exemptions.

Count 13 charged an offense under that portion of 18 U.S.C.A. § 80 which makes it an offense to make false or fraudulent statements or make use of a false statement or deposition or a fictitious statement or entry in any matter within the jurisdiction of any department or agency of the United States, etc. Count 13 in substance alleged that appellant at the town of Shidler, Osage County, Oklahoma, on or about the 2d day of August, 1943, did falsely, etc., make and cause to be made a certain false and fictitious roll, record, account and certificate, to-wit, a narcotic dispensing record required to be kept under the United States narcotic law, said record being false and fictitious in that he failed and omitted to show the dispensation of approximately 20,108 one-half grains of morphine sulphate, 8,955 one-quarter grains of morphine sulphate and an accurate and correct disposition of other narcotic drugs, from June 6, 1941 to and including August 2, 1943.

What has been said in the discussion of Counts 1 to 11 as to the need of clarity in pleading applies with equal force here. The indictment alleged specifically the time and place of the offense, as well as the nature thereof. There can be no doubt as to what appellant was charged with. He was charged with falsifying his dispensation record by omitting therefrom 20,108 one-half grains of morphine, 8,955 one-quarter grains of morphine, which were dispensed by him between June 6, 1941 and August 2, 1943. The only other thing that could have been set out was a showing as to time and place and person of each separate dispensation of this vast amount of drugs. All the government was required to do was to prove that the record was false. To illustrate: If the government proved that appellant purchased 50,000 grains of morphine and that his dispensation record showed that he had...