Newman v. United States

Decision Date10 May 1924
Docket Number2172.
Citation299 F. 128
PartiesNEWMAN v. UNITED STATES.
CourtU.S. Court of Appeals — Fourth Circuit

R. H Allen, of Elkins, W.Va. (A. M. Cunningham, of Elkins, W. Va on the brief), for plaintiff in error.

T. A Brown, U.S. Atty., of Parkersburg, W. Va., W. C. Grimes Asst. U.S. Atty., of Wheeling, W. Va., and H. D. Matthews, Asst. U.S. Atty., of Parkersburg, W. Va.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WOODS Circuit Judge.

The indictment in this case charged F. R. Newman, a practicing physician of Elkins, W. Va., duly registered as required by law, with violating the Harrison Narcotic Act (Comp. Stat. Secs. 6287g-6287q). The indictment contained four counts. The first and third counts charged that defendant knowingly and feloniously gave, distributed, dispensed, and furnished on May 7, 1922, and June 6, 1922, to one John Walter McDonald, a narcotic inspector, 16 one-fourth grain morphine tablets and 6 grains of morphine, on the respective dates, not in the course of his regular professional practice as such physician, and not in the treatment of any disease from which McDonald was suffering, and not pursuant to a written order therefor issued for the purpose by the Commissioner of Internal Revenue. The second and fourth counts charged that defendant did no or about June 5, 1922, and June 14, 1922, respectively, knowingly give, distribute, dispense, and furnish to the said John Walter McDonald morphine tablets by means of certain prescriptions, not in the course of his professional practice.

The first trial of this case at the June term, 1922, resulted in acquittal on counts 2 and 4, and conviction on counts 1 and 3. The case was reversed and remanded for new trial upon grounds stated in 289 F. 712. Defendant was tried and convicted a second time at the June term, 1923, on counts 1 and 3.

The first assigned error is the refusal of the trial judge to direct a verdict of not guilty on the ground of entrapment of the defendant by the government agent. There is a sharp conflict between the testimony of John Walter McDonald, the government narcotic inspector, and Newman, the defendant, on the vital issues of fact involved. There is no testimony by other witnesses, either on behalf of the government or the defense concerning the transactions between the inspector and the accused. McDonald testified that he was sent to Elkins, W. Va., in May, 1922, to investigate Newman, who was suspected of violation of the Harrison Narcotic Act. He called at Newman's office on May 3, 1922, and told defendant that he was an addict and wanted some morphine. The doctor refused to give him any, stating that he was 'on the square' and had nothing to do with addicts. McDonald started to leave the office, but upon request remained and conversed with accused for an hour or so. On May 6, 1922, while walking down Randolph avenue he met Newman, who said 'Hello. How are you?' 'How are you making it?' McDonald replied that he had been able to get two or three capsules at a station. Thereupon the doctor said that that would not last him very long, as he was an unusual type to use it, but that it would 'cover' him for a few days, the little he used. Then Newman asked, 'When do you expect to get out of town? ' McDonald replied that, if he did not get a little more, he would have to leave in a day or so. The defendant thereupon asked the inspector to come in and see him if he was in town the next day. Pursuant to this invitation, McDonald called at defendant's office the following day, which was Sunday, May 7, 1922. The doctor took him into his private office, wrote a prescription in his presence, then asked if McDonald minded if he got it himself, tore up the prescription, went out, and returned in a few minutes and handed the inspector the box containing the morphine tablets referred to in the first count of the indictment. He charged nothing for the morphine and would not accept money offered him by the inspector. McDonald further testified that on the same day he went to Clarksburg, W. Va., where he turned the box of morphine tablets over to Federal Narcotic Inspector L. M. Graves, his chief. He returned to Elkins in June, and on the night of June 6, 1922, called at defendant's office, and asked defendant 'if he had anything for me. ' The doctor replied, 'No,' but sat down at his desk and was busy for a moment. He then requested McDonald to wait a few minutes until he got back. He returned with a bottle containing the morphine referred to in the third court, which he handed to McDonald, and charged and received $2 therefor.

Newman flatly contradicted this testimony of McDonald, denying that he had given morphine to McDonald on the dates and in the manner as testified. He gave this account: The first time he saw McDonald was on June 5, 1922, when the man came to his office and introduced himself as a retired druggist from Washington, D.C., in the mountains for his health. He claimed to be suffering from ulcers of the stomach, and stated that when he had 'spells' his doctor in Washington gave him morphine. The doctor examined McDonald and found him highly nervous. He took note of his subjective symptoms, which would enable him to determine without X-ray whether the patient had ulcers of the stomach, and concluded, after hearing the history of the case from the patient, that he was suffering from ulcers of the stomach. He then prescribed 12 one-fourth grain morphine tablets. A day or two after this he met McDonald on Randolph avenue, and in reply to his inquiry as to how he was getting along McDonald said that he was in misery and could not rest. He advised him to go to his room and try to rest. He did not invite McDonald to come to his office. Later in the same week McDonald again visited the doctor's office, and stated that he was going to the mountains for his health, and was advised as to the best place to go. He did not ask for morphine on this occasion, nor was any given him. On June 14, 1922, McDonald returned to the office, stated that he had been up in the mountains, felt greatly improved in health, and was going back. He said that it was an out of the way place, and asked for another prescription, which was given for 12 one-fourth grain morphine tablets; the ailment of the patient being diagnosed as the same as on the first visit. No charge was made for the prescriptions and no money passed between them. He kept no record of the prescriptions. The prescriptions, which McDonald had filled at a drug store in Elkins, directed the taking of 'one tablet every two hours until pain is relieved. ' He was not certain whether he told McDonald to take a tablet every hour, or every two hours, but admitted that he could have taken the whole amount at one dose. McDonald did not tell him he was an addict, and, had he done so, he would have refused to treat him, or have anything to do with him, as he did not treat addicts, and had refused commissions from government officers to handle such cases since 1919. He prescribed for McDonald as a patient after a physical examination.

McDonald denied that he told Newman he was suffering or had ulcers of the stomach, or that any physical examination was made, and insisted that he had merely told the doctor he was an addict. If McDonald, as the defendant testified, under a pretense of suffering from tumor of the stomach, appealed to defendant to relieve him, and thus induced him to give or sell him the morphine, the jury could well have acquitted the defendant on the ground that he had been entrapped; but if, as McDonald testified, he applied to defendant to sell him the drug as an addict, and defendant refused, but afterwards invited McDonald to his office and gave or sold him the morphine, the jury could well find there was no entrapment. Under this conflicting testimony the court was right in refusing to tell the jury that they should acquit the defendant, because he was entrapped by the officer.

As the issue of entrapment was vital, the defendant was entitled to an accurate statement of the law of entrapment. It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the...

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    ...66 A. L. R. 488; 16 C. J. 88, 89; 8 R. C. L. 129. Defendant relies upon expressions contained in the opinion of this court in Newman v. U. S., 299 F. 128, 131, to the effect that the government is estopped to prosecute where the criminal design originates, not with the accused, but with the......
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