United States v. Hoyt

• Decision Date: 09 November 1917
• Citation: 255 F. 927
• Parties: UNITED STATES v. HOYT.
• Court: U.S. District Court — Southern District of New York

255 F. 927

UNITED STATES v. HOYT.

United States District Court, S.D. New York.

November 9, 1917

John E Walker, Asst. U.S. Dist. Atty., of New York City, for the United States.

Carl E Whitney, of New York City, and N. L. Johnson, for defendant.

McCALL District Judge.

Stripped of its technical verbiage, the offense charged in the indictment is that Daniel J. Hoyt was a dealer in and dispenser of opium, coca leaves, and their salts derivatives, and compounds, and that he sold, bartered dispensed, and distributed to J. B. Williams less than an ounce of heroin, which sale was not made in pursuance of a written order from the person to whom the heroin was sold, bartered, dispensed, and distributed, on a form issued in blank for that purpose by the Commissioner of Internal Revenue; that is to say, it is charged that the defendant sold, bartered, dispensed, and distributed heroin on an order therefor, other than on an order made on the form issued by the Commissioner of Internal Revenue.

A demurrer is filed to the indictment, and the following grounds are assigned:

(1) That Act Dec. 17, 1914, c. 1, 38 Stat. 785, is unconstitutional.

(2) and (3) That there is no offense charged in either count of the indictment.

(4) That the indictment is uncertain, ambiguous, and duplicitous.

I deem it unnecessary to say more of the first ground than that it is overruled.

As to the second and third grounds, the question for decision is: Did the Harrison Anti-Narcotic Law (Act Dec. 17, 1914, c. 1, 38 Stat.

785 (Comp. St. Secs. 6287g-6287q)) permit Hoyt, on the facts alleged in the indictment, to sell, barter, dispense, or distribute heroin upon any order other than one written on a blank form issued for that purpose by the Commissioner of Internal Revenue?

It is insisted for the defendant that the indictment also charges that he was a 'physician registered with the collector of internal revenue as the law requires, and therefore paragraph 1 of section 2 of the act, on which the indictment is based does not apply to him, since subsection (a) of section 2 (Comp. St. Sec. 6287h) provides that nothing contained in section 2 shall apply to physicians registered under the act, who dispense and distribute narcotics in the course of their professional practice only, provided the physician does certain other things not material here. This is true, and is important, in that it might be fatal to the indictment, if the pleader has not...