Smith v. United States

• Decision Date: 02 November 1922
• Docket Number: 5569.
• Citation: 284 F. 673
• Parties: SMITH et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F. 673

SMITH et al. v. UNITED STATES.

No. 5569.

United States Court of Appeals, Eighth Circuit.

November 2, 1922

Rehearing Denied January 16, 1923.

J. M Johnson, of Kansas City, Mo., for plaintiff in error Smith.

John H Atwood, of Kansas City, Mo. (W. G. Lynch, of Kansas City Mo., on the brief), for plaintiff in error Myerly.

Sam O. Hargus, Sp. Asst. U.S. Atty., of Kansas City, Mo. (James W. Sullinger, U.S. Atty., of King City, Mo., on the brief), for the United States.

Before CARLAND and STONE, Circuit Judges, and MUNGER, District Judge.

STONE Circuit Judge.

Error by E. H. Myerly and W. V. Smith from conviction for conspiracy to violate section 2 of the Harrison Anti-Narcotic Law as amended (Comp. St. Sec. 6287h).

Error is claimed in refusal to give a peremptory charge at the close of all the evidence. It is claimed that such a charge should have been given for two reasons: First, that the indictment does not state a public offense; second, that the evidence was insufficient to sustain a conviction. The first reason is, in reality, an attack upon the indictment and is not properly reviewable under a refusal to give a peremptory charge at the close of the evidence. However, as the indictment was challenged and that challenge preserved in the assignment of errors, the point will be determined.

The argument is that the Harrison Act (Comp. St. Secs. 6287g-6287q) is a purely revenue measure; that, so treated, it does not forbid prescriptions for narcotics by physicians given with no intention of medical treatment but to satisfy drug cravings of addicts and does not forbid druggists from filling such prescriptions, with full knowledge of their character. The Harrison Act is a revenue measure. United States v. Jin Fuey Moy, 241 U.S. 394, 36 Sup.Ct. 658, 60 L.Ed. 1061, Ann. Cas. 1917D, 854; United States v. Doremus, 249 U.S. 86, 39 Sup.Ct. 214, 63 L.Ed. 493. However, Congress had the power to enact all requirements in connection with that, or any other act, which it deems advisable, for the purpose of enforcing and making the law effective, and such power is limited only by the restriction that such requirement is reasonably related to its apparent purpose. Discussing the provisions of this act, in a somewhat similar case (Hughes v. United States, 253 F. 543, 544, 165 C.C.A. 213, 214) this court said:

'The effect of the provisions is to limit sales to registered dealers, save the excepted instances. One exception authorizes physicians and certain others to dispense the drugs in the course of 'professional practice only,' and the obtaining of them from a dealer upon a physician's prescription, both without the written order above referred to.'

In the same case it was further said:

'But we think it cannot be said that the provisions referred to have no real or substantial relation to the raising of revenue. If they have such relation, we have nothing to do with any other purpose of Congress. The traffic in such drugs is of a peculiar character. Considerable of it is carried on covertly by peddlers, and the small bulk of the articles facilitates clandestine distribution. The difficulties of subjecting the traffic to excise and preventing frauds on the revenue are obvious, and it was competent for congress to bring the traffic into the open. That there may be consumers of the drugs, who cannot or will not obtain them in the ways provided, is not enough to condemn the statute. Substantially the same result might have followed a heavy tax on such transactions, as to which there would be no color for claim of unconstitutionality.' Considering the character of the traffic and the difficulty of enforcing this revenue act, we think the requirement that physicians should bona fide prescribe in the course of professional treatment in order to bring them within the exception in the statute is reasonable and germane to the revenue purpose. This is equally true of a sale by a druggist with knowledge that the purchaser is seeking the drug upon a bogus prescription. Rothman v. U.S. (C.C.A.) 270 F. 31, 33.

The second ground claimed to require a peremptory charge is the insufficiency of the evidence. The entire evidence has been carefully read and studied in the light of the specific reasons urged for its insufficiency. We think it ample to authorize submission to the jury.

The charge given by the court is attacked in four particulars. One of these is that the court erred in its definition and description of the conspiracy charged. Regarding this claim of error it is urged that the jury was not bound to find or consider the particular conspiracy charged or events forming such alleged agreement; that the court did not identify or individuate the particular conspiracy charged; that neither the manner and means of effectuating the conspiracy nor the persons to whom the drugs were to be sold were specified; that there was no evidence of any conspiracy to dispense drugs illegitimately to persons, much less drug addicts-- the only instance being of drugs dispensed to a government agent; that the charge permitted the jury to consider all the acts and declarations of the defendants, and those with whom they dealt as proof of the conspiracy, when it should have charged that the conspiracy must be proven independent of such acts and statements; that facts not proven are assumed; that overt acts were permitted to be considered in proof of the conspiracy. This portion of the charge is as follows:

'If, however, the two combine and confederate together and have an understanding between themselves, using their positions as physician and druggist illegitimately to bring it about that these drugs are dispensed, not for the purpose which the law contemplates, but, in general, to dispense and distribute them to the general public, not in the exercise of the practice of a profession, regularly, not in the exercise of a distribution by a druggist generally, upon a bona fide prescription, that would be a means and an opportunity and an avenue for the evasion of the law, and the question comes up, then, in a case of this kind, 'What are the facts?' Have the parties acted within their rights, and legitimately, or have they so combined and confederated together, and done other things which are essential to the existence of a conspiracy, whereby their acts have been illegitimate?

'Now, gentlemen, we come down to what conspiracy is. A conspiracy is an understanding or agreement between two or more persons to do an unlawful thing, or to do a lawful thing by unlawful means. In this case-- in the case before you-- it comes under the federal statute, which provides that it shall be unlawful for two or more persons to combine, confederate, or agree together to commit an offense against the United States. Well, it is an offense against the United States to dispense or to dispose of any of these drugs otherwise than in accordance with the law, so if two persons in this case, as charged, conspire, confederate, and agree together, to commit that offense, that is a conspiracy within the purview of this statute under which this indictment is brought.'

'Now, gentlemen, there is nothing mysterious about the nature of conspiracy. We say it is a conspiracy, a confederation, an agreement, an understanding. It does not require any written document to set it in motion. It does not require any formal action on the part of the parties to set it in motion. It is sufficient if, in a given case, as charged, there is a common understanding, tacit or otherwise, so that the parties understand each other--just understand each other that they are going to do the forbidden thing, and that one or both of them is to do some act, or the acts which are essential, to bring it to a successful conclusion. Now that is all there is to a conspiracy, and that is all that you are called upon to find here as to whether there was any such thing in the nature of a conspiracy, as has been defined, existing between these two defendants at the time charged.'

'Now, gentlemen, the question is, Did they conspire, confederate and agree together, as it is charged, to sell, barter, distribute, and dispense these drugs to persons who had no right to receive them? That is the question.

'Now what does the government rely upon to establish this conspiracy? It has introduced the evidence here before you. The court has exercised its discretion and its proper function in restricting that evidence to proper evidence that may be considered by the jury in arriving at a verdict in this particular.

'It is in testimony here, on the part of the government, that one of the government agents, Toomey, together with another man by the name of Thompson, now dead, who cannot be here before you, as was stated by the witness Toomey, through some arrangement made, by Thompson, with the defendant Smith, went to the office of defendant Smith on the 25th day of April, to get some prescriptions. It is stated here that there were to be 100 of them. When they got there, Smith stated he only had 35 of them done; that in the meantime some other persons came in and asked for prescriptions for drugs, and, without stopping to write some individual, specific prescription for such person, some of these that had already been prepared were taken off and handed to such persons, and then their place was supplied by writing

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