255 F. 621 | 4th Cir. | 1918
Lead Opinion
Defendant was convicted and sentenced under an indictment which in the first count charges that on November .27, 1916, he did—
“unlawfully and feloniously dispense, distribute, and sell to one Elsie Davis a certain quantity of a certain derivative of opium, to wit; three grains of morphine sulphate, he, the said Walter T. Foreman, then and there issuing to the said Elsie Davis a certain prescription wherein he, the said Walter T. Foreman, prescribed for the said Elsie Davis three grains of morphine sulphate, which said prescription, so issued by the said Walter T. Foreman to the said Elsie Davis, was not issued by Walter T. Foreman in the course of his professional practice only, and which morphine sulphate was not dispensed, distributed, sold, bartered, exchanged, or given away in pursuance of a written order from the said Elsie Davis on a form issued in blank by the Commissioner of Internal Revenue for that purpose.”
Two other counts make the same charge as to sales of different amounts of the same drug by prescriptions given to other persons.
“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.”
The order forms can be issued only to those persons who have registered and paid the tax.
This section in terms provides that it shall not apply “to the dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist, or veterinary surgeon registered under this act in the course of his professional practice only,” or “to the sale, dispensing, or distribution of any of the aforesaid drugs by a dealer to a consumer under and in pursuance of a written prescription issued by a physician, dentist, or veterinary surgeon registered under this act.”
The substance of the charge in the indictment is that defendant did dispense, distribute and sell opium to the persons named without a written order and not in the course of his professional practice. The indictment being laid under section’ 2 of the act, it is necessary to
But the charge in the indictment of selling without the order required is a charge of one of the precise acts denounced in the statute. The dependent clause “issuing to the said Elsie Davis a certain prescription and,” etc., does not affect the matter, for proof of a sale without the order would be sufficient, even if made under the guise of a prescription. The defendant was therefore informed by the indictment that he was charged with selling to the persons named. Whether proof that the defendant had made a sale in some other way than under the guise of a physician’s prescription would have been fatal variance between the charge and the proof is a question which does not affect the validity of the indictment.
“And the court further charges you, as a matter of law, that the issuing of prescriptions by a registered physician to persons- other than his patients, and in the course of his professional practice only, whereby they could procure and did procure the inhibited drugs, is a sale, a dispensing and distribution, of such drugs within the meaning of the act of Congress under which the accused is being prosecuted.”
Resolving all conflicting testimony against the defendant, no direct sale, barter, exchange, or gift, and no dispensing or distribution that wopld denote participation in a sale, barter, exchange, or gift by him, was proved. He registered and paid the tax. Afterwards he gave prescriptions for morphine and cocaine to the persons named in the indictment, who were drug addict’s, calling for such quantities of the drugs as to indicate that he was merely gratifying the craving of the addicts and that he was not seeking to cure them of the habit. The drugs were not furnished by the defendant. On the contrary, the prescriptions were carried by the recipients to different registered druggists and by them filled. There was no evidence that defendant was interested in the business of any of the druggists, or had any arrangement to share the profits of the sales with them, or that he was agent for any druggist, or that he even knew where the prescriptions were to be carried. What the statute forbids is sale, barter, exchange, or gift, including such distribution and dispensing by a physician not in the course of his practice as would amount to participation in a sale, barter, exchange, or gift. The mere issuance of a prescription by a physician to be filled by any druggist, without participation by the physician in the sale made under it, would not be a sale as charged in the indictment, or such distribution or dispensing as amounts to a sale. The instruction quoted was therefore erroneous.
Reversed.
Concurrence Opinion
concurs, .except as to the ruling on the demurrer.