Newman v. United States

• Citation: 289 F. 712
• Decision Date: 01 May 1923
• Docket Number: 2052.
• Parties: NEWMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

289 F. 712

NEWMAN v. UNITED STATES.

No. 2052.

United States Court of Appeals, Fourth Circuit.

May 1, 1923

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

W. C Grimes, Asst. U.S. Atty., of Keyser, W.Va. (T. A. Brown, U.S Atty., of Parkersburg, W. Va., on the brief), for the United States.

Before WOODS and WADDILL, Circuit Judges, and GRONER, District Judge.

WADDILL Circuit Judge.

The indictment in this case charged the plaintiff in error, a licensed physician practicing at Elkins, W. Va., with violating the Harrison Anti-Narcotic Drug Act (Comp. St. Secs.

6287g-6287q). The offenses are stated in four counts: First, that the defendant knowingly and feloniously gave, distributed, dispensed, and furnished, on the 7th day of May, 1922, to one John Walter McDonald, a narcotic inspector, 16 one-quarter grains of morphine tablets, not in the course of his regular professional practice as such physician, and not in the treatment of any disease from which said McDonald was suffering, and not pursuant to a written order therefor issued for the purpose by the Commissioner of Internal Revenue; the second, that the defendant did, on or about the 5th of June, 1922, knowingly and feloniously give, distribute, dispense, and furnish to the said McDonald 12 one-quarter grains of morphine tablets, by means of a certain prescription, not in the course of his professional practice; the third count charged the same offense as that contained in the first count, except that the date in the third count is the 6th of June, 1922, and the quantity of morphine alleged to have been dispensed 6 grains; the fourth count is the same as the second, except the date of the offense is June 14th. The jury acquitted the defendant under the second and fourth counts, and convicted him under the first and third counts.

There are but two questions involved in the case, viz.: Did the defendant, on or about the 7th of May, 1922, dispense, sell, or give away to J. W. McDonald, narcotic inspector, not in the regular course of his practice, 16 one-quarter grain morphine tablets, as alleged in count 1 and 6 one-quarter grain morphine tablets, on or about the 6th of June, as alleged in the third count of the indictment? The contention of the government, and on which it bases its claim to support the verdict, is stated by its counsel as to count 1, as follows:

'The evidence of the government differs very materially from that of the defendant. It appears from the evidence of John Walter McDonald, the government narcotic inspector, that he went to Elkins on or about the 3d day of May, 1922, to make an investigation of this case, calling at the office of the defendant on the same day that he reached said town. Said narcotic inspector told said defendant that he was an addict, and had been for about five years; that he used from one-half to a grain a day; that he asked defendant to supply him with some morphine and defendant said: 'Well, I am sorry, I cannot do anything for you to-day; I am on the square.' Defendant then got up to leave, but remained about one half hour on the invitation of the defendant. This was on Monday. On the following Saturday witness was walking along Randolph avenue and met defendant, who said: 'Hello there, how are you feeling to-day?' After witness had returned the salutation, defendant said: 'You look pretty well; have you been able to get anything?' Witness then told defendant that he had picked up a couple of capsules at the station, but if he couldn't get more he would have to leave town; that the defendant then asked witness to come to defendant's office on Sunday morning, which date was May 7th. Witness went to the office of defendant as requested, and, on being asked his name, gave his right name and address, but told defendant he could make the address Toledo, if he wanted to. Defendant in a subsequent prescription gave the address of witness as Elkins, W.Va. Witness further testified that defendant on this first occasion wrote a prescription for 12 tablets, one-fourth grain each, and handed to witness; then asked said witness if he cared if he (defendant) went after the drug himself, and on being told by witness that he had no objection, defendant took the prescription and tore it up. Witness stated he knew the prescription was for 12 tablets of morphine, one-fourth grain each, because he looked over the defendant's shoulder while he was writing it; that defendant charged him nothing for writing the prescription; that the defendant made no examination of the witness to ascertain whether he was suffering from any disease, and that witness had no order blank. The above is substantially the evidence of the government as to first count on which defendant was convicted.'

And as to count 3, as follows:

'The witness McDonald testified that he again visited the defendant on June 3th, because defendant had promised to have some straight stuff, and that on this occasion he obtained some morphine sulphate, which in its original form comes in little blocks or cubes. The record does not make it clear how witness received this, whether by prescription, or whether it was delivered to him by Dr. Newman. Witness further testified that he was not suffering from any disease, nor had he any pain of any kind, and that no questions were asked him. This transaction is denied by the defendant. This is substantially all the evidence given touching count 3, on which defendant was found guilty.'

The material testimony in the case was confined almost entirely to the evidence of the government inspector on the one hand, and the defendant on the other; the conflict between the two being sharp, but in many matters of importance they are practically in harmony. The government's counsel in their argument thus refer to the testimony:

'The evidence is very conflicting, consisting of assertions by the government witness Mcdonald, narcotic inspector, and denials by the defendant, the only two witnesses who have personal knowledge of the main facts. The chief and most important difference is as to whether the witness McDonald represented himself to be suffering from ulcers of the stomach and other maladies which caused him severe pain, and because of which he could not sleep at night, and whether the defendant made a physical examination in so far as he was able to do of said witness to ascertain whether he was malingering or not. These contradictions, however, apply wholly to counts 2 and 4, on which defendant was acquitted. The government concedes that this was a matter to be submitted to the jury.'

The acceptance by the jury of the defendant's statement of the inspector's account of his ailments and suffering throws much light on the real truth and facts of the case and the result as found by the jury cannot be brushed aside, because, as claimed, what was said applied only to the second and fourth counts. These particulars, as to what the inspector represented his condition to be, bear most materially on the motive and intent with which the defendant acted in everything he did. Moreover the fact that the inspector and defendant are in substantial accord as to the former's effort on his first visit to procure the drug from the defendant, and of the defendant's refusal to furnish the same, and that they do not differ substantially as to the occurrences and circumstances under which they met on the street several days or a week after the first meeting, is most material as throwing light on the action and motive of the defendant, as well as whose version should be accepted as true in the subsequent occurrences. The differences between the inspector and the accused are chiefly that the inspector says he claimed to be a drug addict, and was not suffering from any physical ailment, and no examination was made to ascertain his condition, while the defendant says the inspector represented himself to be a retired druggist from Washington, whose health had broken down, and who was on that account staying in the mountains near Elkins, and that he had been forced to use drugs on account of an ulcerated stomach and other...