Workin v. United States

• Decision Date: 16 April 1919
• Docket Number: 116.
• Citation: 260 F. 137
• Parties: WORKIN et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Second Circuit

260 F. 137

WORKIN et al. v. UNITED STATES. ^[1]

No. 116.

United States Court of Appeals, Second Circuit.

April 16, 1919

Lawrence B. Cohen, of New York City (Jacob Shientag, of New York City of counsel), for plaintiffs in error.

Francis G. Caffey, U.S. Atty., of New York City (Ben A. Matthews Lawrence H. Axman, Benjamin P. De Witt, Asst. U.S. Attys all of New York City, of counsel), for the United States.

Before WARD, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

The plaintiff in error Workin was the owner of a drug store at 125th street and Eighth avenue, New York City. Meyers was a licensed druggist. Workin had been a salesman for a manufacturing concern, and with one Dr. Essendon entered the pharmacy business, calling their store the 'Medicine Shop.' Dr. Essendon maintained an office in the back of the drug store, and shortly thereafter withdrew from the partnership. Thereafter Workin always had associated with him some doctor who had an office in the rear of the store. After such relationship with some four doctors, Dr. Corish, came in response to an advertisement inserted in a newspaper by Workin, and established his office in the rear of the drug store. Prior thereto, Meyers assumed charge of the 'Medicine Shop,' and when Corish appeared, Meyers made the arrangements for the hire of the room.

The proof established that the drug store did a considerable business in the sale of morphine and heroin. Addicts of these drugs patronized it regularly. The doctor connected with the medicine shop would give written prescriptions to these addicts in an alleged endeavor to comply with the law. Whenever a person came intending to purchase such drugs, he was referred to the associated physician as 'our doctor' (meaning the doctor connected with the drug store), who would thereupon give a prescription for the drug. The customers were personally introduced to the doctor, usually by Workin or Meyers, who would instruct the doctor to take care of the customer. New customers were asked, 'How much have you been getting?' and after replying, either Workin or Meyers would reply, 'Well, you had better start off higher with us because our doctor will have to gradually cut you down. ' The indictment consisted of four counts. The district judge dismissed the first two, submitting the question of guilt under the second and fourth count of the indictment to the jury. In substance it charged that on the 1st of January, 1917, and up to and including the day of the indictment, the plaintiffs in error, together with John L. Corish, did, within the jurisdiction of this court, unlawfully and feloniously conspire to commit an offense against the United States, to wit, to violate section 2 of the act of Congress approved December 17, 1914, c. 1, 38 Stat. 785, 786 (Comp. St. Sec. 6287h), by selling and dispensing and distributing compounds and derivatives of opium not in pursuance of written orders to persons to whom such articles were sold, dispensed, and disbursed on forms issued in blank for that purpose by the Commissioner of Internal Revenue.

It charged that the plaintiffs in error conspired to procure Dr. Corish, a practicing physician, to issue narcotic prescriptions to persons to whom the drug was to be sold, the plaintiffs in error knowing and intending that the said prescriptions were given by Dr. Corish not in the course of his professional practice nor in good faith, and further that the recipients of such prescriptions would be induced by them to present the prescriptions at the drug store maintained by them, and that they would fill the prescriptions and dispense and distribute to the persons the kind and quality of drugs called for by them. Overt acts are alleged to have been committed in furtherance of the conspiracy, and, further, that Dr. Corish, as overt acts, issued to three certain persons, prescriptions for heroin which were sold and dispensed to the said certain persons by Workin and Meyers, as called for by the prescriptions.

The statute provides:

'That it shall be unlawful for any person to sell * * * any of the aforesaid drugs except in pursuance of a written order * * * on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. * * * Nothing contained in this section shall apply--

'(a) To the dispensing or distribution of any of the aforesaid drugs to a patient by a physician * * * registered under this act in the course of his professional practice only. * * *

'(b) To the sale * * * by a dealer to a consumer under and in pursuance of a written prescription issued by a physician, * * * registered under this act. * * * 'The commissioner * * * shall cause suitable forms to be prepared * * * to be distributed to collectors of internal revenue for sale by them.'

The district judge submitted the case to the jury, instructing them that they may find the plaintiffs in error guilty if the concerted action of two or all of them was simply a mere means by which this drug should be distributed to unfortunate addicts who had indulged in the practice of using the drugs and who purchased, in the manner described by the witnesses, from the plaintiffs in error to satisfy their craving, or whether there was a genuine effort to secure their convalescence from what may be regarded as a disease. The evidence presented by the government required the submission of the guilt or innocence of the defendants to the jury. We are obliged to accept their finding.

The first assignment of error raises the constitutionality of the so-called 'Harrison Act.' Since the argument of the appeal and before our decision, the Supreme Court has decided that the law is constitutional, and that a conviction for crime thereunder will be sustained. Webb v. U.S., 249 U.S. 96, 39 Sup.Ct. 217, 63 L.Ed. 497; U.S. v. Doremus, 249 U.S. 86, 39 Sup.Ct. 214, 63 L.Ed. 493, decided March 3, 1919. No further discussion is necessary as to this assignment of error.

As a second assignment of error, the plaintiffs in error charge that the district judge improperly admitted evidence showing other offenses not contained in this indictment and which was the subject of another indictment. The indictment charged a conspiracy commencing on January 1, 1917, and ending with the filing of the indictment on February 20, 1918. As...