Thompson v. United States

• Decision Date: 28 April 1919
• Docket Number: 4985.
• Citation: 258 F. 196
• Parties: THOMPSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

258 F. 196

THOMPSON v. UNITED STATES.

No. 4985.

United States Court of Appeals, Eighth Circuit.

April 28, 1919

Rehearing Denied September 1, 1919.

Albert D. Nortoni, of St. Louis, Mo., for plaintiff in error.

Vance J. Higgs, Asst. U.S. Atty., of St. Louis, Mo. (Arthur L Oliver, U.S. Atty., of St. Louis, Mo., on the brief), for the United States.

Before SANBORN, Circuit Judge, and TRIEBER and YOUMANS, District judges.

TRIEBER District Judge.

The plaintiff in error, hereinafter referred to as the defendant was found guilty by a jury on three counts of an indictment charging him with violations of section 2 of the Harrison Anti-Narcotic Act of December 17, 1914 (38 Stat. 786, c. 1 (section 6287h, U.S. Comp. Stat. 1918)).

There were four counts to the indictment, but by direction of the court the jury returned a verdict of not guilty on the fourth count. The counts are all in the same language, except that each charges the defendant with dispensing morphine sulphate to a different person, at a different time, and in different quantities. Each count charges that the defendant was a physician duly registered with the collector of Internal Revenue of the United States, as required by this act, as a dealer in and dispenser of opium, coca leaves, and their salts, derivatives, and compounds, and that he knowingly willfully, and not in the course of his professional practice only, sold, bartered, dispensed, and distributed-- in the first count to one Louis M. Wood, 88 grains of morphine sulphate, a derivative of opium; in the second count, 468 grains, to Mrs. William Cosgrove; and in the third count, 236 grains, to Pearl Spellman; that the sales were not made in the course of his professional practice only, nor in pursuance of a written order from the purchaser on forms issued in blank for that purpose by the Commissioner of Internal Revenue, as required by the act. Each count then proceeds to negative the other exemptions in the act, although that was unnecessary under the provisions of section 8 of the act (Comp. St. Sec. 6287n).

The defendant attacked the constitutionality of the section of the act under which the indictment was drawn by a demurrer to each count of the indictment, again by special requests for instructions to the jury, and after the return of the verdict by a motion in arrest of judgment. The District Court sustained the constitutionality of the act.

Since the submission of this case in this court the Supreme Court in United States v. Doremus, 249 U.S. 86, 39 Sup.Ct. 214, 63 L.Ed. 493, and Webb v. United States, 249 U.S. 96, 39 Sup.Ct. 217, 63 L.Ed. 497, opinions filed March 3, 1919, sustained the constitutionality of this section. The identical questions now involved in this case were before the Supreme Court in those cases. In the Webb Case, which came before the court on certificate from the United States Circuit Court of Appeals for the Sixth Circuit, the following questions of law were certified:

(1) 'Does the first sentence of section 2 of the Harrison Act prohibit retail sales of morphine by druggists to persons who have no physician's prescription, who have no order blank therefor, and who cannot obtain an order blank, because not of the class to which such blanks are allowed to be issued?'

(2) 'If the answer to question 1 is in the affirmative, does this construction make unconstitutional the prohibition of such sale?'

(3) 'If a practicing and registered physician issues an order for morphine to an habitual user thereof, the order not being issued by him in the course of professional treatment in the attempted cure of the habit, but being issued for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use, is such order a physician's prescription under exception (b) of section 2?'

The court answered the first in the affirmative and the second and third in the negative. This disposes of this contention of the defendant.

There are a large number of assignments of error, but most of them are to the refusal of the court to give certain special instructions to the jury, which in effect declare the section of the act involved unconstitutional, and therefore need not be considered in this opinion.

One of the grounds assigned in the demurrer was that the act does not make it an offense for a registered physician to sell the narcotics described in the act under any circumstances. Section 2 of the act clearly covers offenses charged in these counts of the indictment. It reads:

'That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs 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 Commissioner of Internal Revenue.'

And then it excepts, among others, a physician duly registered, under the act, 'in the course of his professional practice.'

In the Doremus Case the defendant was charged, as in the instant case, with being a registered physician and had sold a quantity of heroin without a written order on a blank form issued for that purpose. A copy of the indictment in that case will be found in 246 F. 958. The Supreme Court, after quoting the act, held:

'It is made unlawful for any person to obtain the drugs by means of the order forms for any purpose other than the use, sale or distribution thereof by him in the conduct of a lawful business in said drugs, or the legitimate practice of his profession.

'It is apparent that the section makes sales of these drugs unlawful except to persons who have the order forms issued by the Commissioner of Internal Revenue, and the order is required to be preserved for two years in such way as to be readily accessible to official inspection. But it is not to apply (a) to physicians, etc., dispensing and distributing the drug to patients in the course of professional practice, the physician to keep a record thereof, except in the case of personal attendance upon a patient; and (b) to the sale, dispensing, or distributing of the drugs by a dealer upon a prescription issued by a physician, etc., registered under the act.'

There was no error in overruling the demurrer on this ground.

It is assigned as error that physicians were permitted to testify as experts as to the well-recognized methods among the medical fraternity of treating persons addicted to the use of narcotic drugs for the purpose of curing them of the habit. The ground upon which the objection is based, as stated by counsel for defendant in his brief, is:

'It was incompetent and prejudicial, for that it tended to raise an issue, even on the erroneous theory on which the case was tried, as to whether or not the plaintiff in error was practicing his profession in a legitimate manner and in good faith, while dispensing the drugs to those who, the evidence shows, admittedly applied to him for treatment as a physician.'

That such evidence is admissible was decided by this court in Samuels v. United States, 232 F. 536, 542, 146 C.C.A. 494, Ann. Cas. 1917A, 711. See 3 Chamberlayne on Evidence, Sec. 2425. Such evidence is not conclusive, but, as stated by the learned trial judge in his charge to the jury:

'It is competent for medical men to give in evidence their expert medical opinion touching matters within the range of the medical science with which they are familiar; but such expert medical opinion and evidence is not binding upon the jury, and is received as advisory only. The jury is therefore permitted to regard such evidence as advisory, and reckon with it in the light and experience in human affairs, and to accept it or reject it in whole or in part, as you may see fit.'

Counsel rely on School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 Sup.Ct. 33, 47 L.Ed. 90, and Bruce v. United States, 202 F. 98, 120 C.C.A. 370, decided by this court. In the last-cited case, evidence of similar nature was introduced against objections, but the cause was not reversed upon that ground. It was the refusal of the court to charge the jury as requested in behalf of the defendant, as appears from the opinion. The indictment in that case was for violation of section 215 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 (Comp. St. Sec. 10385)), using the mails in a scheme to defraud.

The School of Magnetic Healing Case was an action to enjoin a postmaster from enforcing an order of the Postmaster General depriving the plaintiffs from using the mails; the order alleging:

'They being engaged in conducting a scheme or device for obtaining money through the mails by means of false and fraudulent pretenses.' The bill was dismissed by the trial judge on demurrer. It charged:

'That the plaintiffs, in their business, carried on and conducted, not only the treating of people afflicted with ills at their establishment, * * * but also engaged in the business of teaching and educating others in the practical science of healing, and that a large amount of their business consists of treatment by letter and advice to people throughout the United States and foreign countries; * * * that their business is founded largely and almost exclusively on the physical and practical proposition that the mind of the human race is largely responsible for its ills, and is a perceptible factor in the treating, curing, benefiting, and remedying thereof.'

In reversing the cause the court at the very beginning of the opinion stated:

'As the case arises on demurrer, all material facts averred in the bill are of course admitted.'

And thereupon the court held, quoting from the headnotes:

'Such an allegation having been made in a bill of complaint, the business...