Towbin v. United States

• Decision Date: 06 January 1938
• Docket Number: No. 1543.,1543.
• Citation: 93 F.2d 861
• Parties: TOWBIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

93 F.2d 861 (1938)

TOWBIN v. UNITED STATES.

No. 1543.

Circuit Court of Appeals, Tenth Circuit.

January 6, 1938.

Ralph L. Carr and William O. Perry, both of Denver, Colo., for appellant.

C. V. Marmaduke, Jr., Asst. U. S. Atty., of Denver, Colo. (Thomas J. Morrissey, U. S. Atty., of Denver, Colo., on the brief), for the United States.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Appellant, Samuel Towbin, a practicing physician in Denver, convicted in the United States District Court for the District of Colorado under three counts of an indictment charging violations of section 1044(a), 26 U.S.C.A., and three counts of the same indictment charging violation of section 1693(a) (A), 26 U.S.C.A., appeals to this court for review of the judgment of said court imposing upon him a sentence of three years under each of said counts, to run concurrently, in addition to a fine of $500 under each of the first three counts.

Count 1 charged that on or about the 8th day of January, 1936, Dr. Towbin did unlawfully, knowingly, and feloniously sell, barter, exchange, give away, dispense, and distribute, to a person or persons to the grand jurors unknown, 10 grains of morphine not in pursuance of a written order of the said person or persons on a form issued in blank for that purpose by the Commissioner of Internal Revenue.

Counts 2, 3, 4, 5, and 6 are in all material respects the same as count 1 except as to amount and date.

Counts 7 to 12, inclusive, are based upon title 26 U.S.C.A. § 1044(c) (1), charging that appellant unlawfully, willfully, knowingly, feloniously, falsely, and fraudulently did simulate, execute, and sign the record required by the revenue laws showing the amount dispensed and distributed and the name and address of the patient to whom such drugs were distributed, and that the said record was falsely made, simulated, and executed by Dr. Towbin, and that the party therein named in truth and fact received no such medicine containing morphine on the date mentioned therein. The record as made by appellant as charged in the seventh count is as follows: "Jan. 8, 1936, G. Hagen, 739 Fox, 12 Pain No. 1, Flu." "Jan. 8, 1936, G. Hagen, 739 Fox, 4 Ozs. Cough No. 1, Flu."

It is not essential to set out the record alleged to have been simulated by appellant in counts 8, 9, and 10, as two of said counts were dismissed and an acquittal resulted on the other. Conviction was had on counts 1, 5, 6, 7, 11, and 12.

At the close of the case, counsel for appellant moved for a directed verdict on the ground that there was not sufficient evidence on any count to take the case to the jury. Said motion was denied and exceptions separately saved and the ruling thereon is assigned as error.

John W. Marsh, a United States narcotic agent, testified on January 13, 1936 that he went to appellant's office and after making an inspection of the records of narcotics purchased and their disposition, carried away said records and held them until the trial of the case. He stated that appellant explained that entries in his record marked "Pain No. 1" referred to capsules containing a half grain of morphine sulphate, a half grain of phenobarbital, a grain of amidopyrine and three grains of acetylsalicylic acid, and that the term "Cough No. 1" was a sulphate containing one grain of morphine sulphate, a half dram of paregoric, and an ounce of syrup of white pine.

Mrs. Frances Hagen, a former patient to whom he had given medicine prior to the date of the alleged violation, having made an engagement over the phone to see him at a named time, came to his office to pay a bill, at which time he gave her no medicine. This was on January 8, 1936. When federal men later came to her house, she again called appellant by telephone, asking if she might see him. That evening she came again to his office to learn if the federal men were after the bill which she had owed and paid, appellant not having communicated relative thereto with her subsequent to her paying said bill. Appellant told her that the men were trying to find out if he had given her any medicine in January, and agreed with the witness that he had given her no medicine at such time, but suggested that he had probably made a record to that effect in his books, his books not then being available to him, the federal agent having taken his records and not returned them. His recollection was that he had given the medicine to another person, and upon the trial it was proved that such party was a Mrs. Whalen, who took the stand and testified that she did, in fact, receive such medicine at about that time. No record of Mrs. Hagen's receipt of the medicine appeared in Exhibit A, which was the record seized and taken away by the narcotic agent.

After she had been before the grand jury in September, Mrs. Hagen said that appellant called her over the phone and asked her if she would talk to his lawyer and if she had made any affidavit or given testimony against him before the grand jury. She refused to give him any information because what had happened before the grand jury was to be kept secret. On redirect examination, after refreshing her memory by the examination of an instrument marked Exhibit B, not offered in evidence, but evidently a memorandum prepared by the government agents, which she had signed, the witness said that appellant asked her if she would help him by saying that he had, in fact, given her medicine. Appellant, relative thereto, testified that he asked Mrs. Hagen if she would tell his lawyer if he had ever given her any medicine.

Mrs. M. Whalen came in about the time Mrs. Hagen arrived according to her appointment. Appellant excused himself, going into another room, where he received from Mrs. Hagen payment of her account, giving her a receipt therefor. He testified that after Mrs. Hagen left he administered to Mrs. Whalen four ounces of the cough remedy known as Cough No. 1 and 12 capsules known as Pain No. 1. Said record showed medicine given to Mrs. Hagen on January 8, 1936, which he testified should have been noted as given to Mrs. Whalen, the dates apparently being the same.

Mrs. M. Whalen testified that appellant had been her physician for two years, and that, whilst suffering from the flu about a week after New Year in 1936, she went to his office and received from him some cough syrup and capsules. She did not remember how many capsules.

In the record book, Exhibit A, no medicine was recorded as given to Mrs. Whalen at any time near the date in question. Appellant testified that Mrs. Hagen telephoned to him that federal narcotic agents had been to see her and asked for an explanation relative thereto, and then it occurred to him that he might have made an entry giving her name in his book and he told her he must have made the mistake in entering her name. She said he stated that he had given the medicine to another man, but his recollection was that he said he had given it to another person.

As to the conversation in September, 1936, after the meeting of the grand jury, appellant testified that Mrs. Hagen had again called him to say that she had moved from 739 Fox street to Vrain street and had given him her telephone number, and that later he called at her home to ask if his attorney might come to see her and if she would tell his lawyer if he had, in fact, given her medicine, and she agreed that she would tell the truth about the matter to his attorney.

The other four counts under which he was convicted involved appellant's treatment of Mrs. Caral Smith of 1038 Milwaukee street, Denver, for an injury caused by a large wooden sliver which had pierced her hip. When she went to his office in great pain on New Year's Day, 1936, appellant found it necessary, as he could not pull it out, to make an incision the length of the sliver, which occasioned the injection of novocaine, a local anesthetic, to deaden the pain.

The question involved in counts 5 and 11 concerns the exact date of the receipt of medicine by Mrs. Smith. Appellant's record shows that he dispensed it on the occasion of her first visit on January 1, 1936, when he realized after the removal of the sliver that the effects of the novocaine would soon wear off and the pain which had brought her to his office would return. Novocaine loses its effect after a period of from 30 minutes to 2 hours. Mrs. Smith thought that the first medicine she received was given to her on her second visit on January 3, when she was having more pain than on the occasion of her first visit. Appellant testified that on the second visit he removed the scab, cleaned the wound, applied an antiseptic ointment, put on a grease dressing, and told her to go home and apply wet heat. He had no recollection and his record did not show that he gave the witness any medicine on this occasion. His record and his recollection are in accord. The event of Mrs. Smith's third visit to the office of Dr. Towbin in January, 1936, is important. Although he was charged and convicted of criminal misconduct under the sixth and twelfth counts of the indictment, the testimony of the government harmonizes with that of the defendant in establishing that he was guilty of nothing. Mrs. Smith's story is identical with that of appellant, except as to the shape and number of the capsules received, and the record, Exhibit A, corroborates the physician.

Mrs. Smith testified that she went to appellant's office the third time on January 4, 1936, because of the continued severe pain in her hip, and that he gave her pills which furnished the needed relief. She said that the pills were shaped like aspirin tablets and that each relieved her pain for about 2 hours, although she took six in one day, they did not hurt her. The appellant testified that she returned the third time on January 4, 1936, in great pain, and that he again gave her morphine capsules. His record, which was in the possession of the prosecution, corroborates...