The indictment charged one Joseph Freilich, a druggist, with violating Harrison Narcotic Drug Act Dec. 17, 1914 (38 St. at Large, p. 785 [Comp. St. §§ 6287g-6287q]). It also charged the plaintiff in error, hereinafter called the defendant, with aiding and abetting Freilich therein. The indictment was filed on June 24, 1919, and as presented it contained seven counts, six charging substantive offenses and one charging conspiracy. Freilich pleaded guilty on June 25th to all the counts. The trial began on July 10, 1919, and was concluded on the next day. The promptness with which the case was brought to trial is deserving of all commendation. Promptitude in such cases is essential to any efficient administration of the criminal law. At the trial counts 3 and 4 were dismissed, and acquittal was directed on count 1. The jury rendered a verdict of guilty on counts 2, 5, and 6, and not guilty on count 7, which was the conspiracy count. The defendant Harris was sentenced to two years in the United States Penitentiary at Atlanta, Ga. Freilich was fined $1,000 and paid his fine. That part of count 6 which relates to the defendant, is found in the margin.
'The defendant is a duly licensed physician and is registered under the Harrison Narcotic Law. He has been practicing medicine for 23 years.
“I asked some of my patients to permit me to experiment upon my theory, and I got one or two to permit me; one I cured, and I was arrested right then, and I got the history of one patient that I started on.”
A member of the New York City police force for 14 years, who had been assigned to the narcotic squad and was not a drug addict, and who got a prescription from the defendant, testified as follows:
“I told him I wanted to get a scrip for some stuff. He then said, ‘What kind of stuff do you uso?’ I said, ‘I use heroin.’ He said, ‘Where do you live?’ I said, ‘I live in 341 East Thirtieth street.’ He said, ‘Where were you getting your stuff before?’ I said that I just came down from Weehawken, N. J., and I bought it up there in the street off a peddler. He said, T will have to give you an examination.’ I said, ‘All right.’ He said, ‘Come in this room.’ He brought me in another' room, and told me to drop my pants and lift up my shirt, and he examined my heart; he put the stethoscope on my heart, and in the presence of the liexitenant in the United States army uniform, he shook his head, ‘Why, you are a physical wreck,’ he said, ‘the heroin you have been using is killing you.’ He said, ‘How do you use it?’ I said, T blow it.’ He then looked up my nose, and to this other man he said, ‘Just listen to this man’s heart from the use of this heroin.’ The other man was Henry Harris. I don’t know if he is a doctor or not. He is a nephew of Leopold Harris. Henry Harris put the instrument in his ears and shook his head, and also stated that I was a wreck from the use of that drug. He said, ‘Would you take a blow now, if you got It?’ I said, ‘Doctor, yes, I would.’ He said, ‘You are too willing; 3 will give you a scrip, but I won’t give you a scrip for heroin; I will'give you a scrip for morphine, because I am afraid you will die if you keep using heroin.’ lie then took me out in the outer office, and he said, ‘How many grains do you think will be necessary for you?’ I said, T don’t know; it is up to you.’ He said, ‘How much stuff were you getting up in Weehawken?’ I said, T used to buy it up there by the deck.’ He said, ‘What you get now is going lo be the pure drug from the drug store, and it is going to be pretty strong, but nevertheless;,' he said, T would like to know how much you want.’ I said, ‘Give me 25 grains; I think that will do me fora day or so.’ Ho then sat down and wrote out a prescription for 25 grains; and 1 said, ‘Now doctor, I am out of work; I would like to know how much you are going to charge me.’ He said, T will charge you the same as the rest; 1 will charge you Í¡>1.’ I said, ‘Why, the fellows are telling me I could get a scrip for 50 cents.’ lie said. ‘Why didn’t you tell me that in the beginning: I will give you a ten-grain scrip for 50 cents, but over that I must charge you accordingly, and for 25 it will cost you a dollar.’ So I said, ‘All right, I will take it.’ And I paid Leopold Harris, the defendant, the dollar. I took (he prescription and I said, T am out of work now, but I expect a job in a day or two, and I don’t like to lose any time in coming here. What time can I come here and get the scrip?’ He said, ‘You won’t lose any time; can you get me any new customers?’ I said, ‘Yes, where I am living, there are one*788 or two fellows, I tbink, I can bring around.’ He said, ‘If you bring tbem around, this naan bere,’ pointing to bis nephew, ‘will give you a scrip when you come here.’ I said, ‘Where I am living in Thirtieth street, they have been telling me I can get a scrip around Thirty-Ninth street or in that neighborhood; I can get it filled up there. He said to me, ‘Young man, while you are under my treatment, you go to one place; you go to Freilieh’s drug store and no place else' to get the prescription filled, and go around and give them this prescription, and tell them you are a new customer; that I sent you.’ ”
The government called as a witness the physician to the House of Detention of the City of New York and also to the New York City Prison, known as the Tombs. During the six years he had been physician at the Tombs he had treated approximately 12,000 drug addicts, and he had made a special study of drug addiction, and had written much on the subject. In the course of his testimony he said:
“A person can be cut off the use of cocaine at once, without any reduction at all. It is not necessary to reduce cocaine. I have never reduced cocaine addicts; I always take them immediately off the drug; never had any fatalities or trouble; just gave them a sleeping powder and a tonic mixture to build them up. In thd treatment of drug addicts medication is necessary, besides prescribing the drug; pure reduction, reducing the amount of the drug, is not sufficient. They must be built up. That person may have a weakened constitution to begin with; you must build up this person, and you must also see that he has frequent evacuations of the bowels. To give 30 or 40 grains of heroin a day to a patient is an absolute unnecessity; that is absolutely wrong. I have never in all my cases given more than 2 grains of morphine a day to any drug addict; I have not had a single death in the treatment of 12,000 cases. * * * It is a recognized method with practitioners to have some certain definite sign of the presence of drug addiction before giving a prescription. If an addict said he had been using 20 or 30 or 40 grains a day, that would make no difference with me; it all would depend on his physical condition, the condition of his heart and lungs, and if he had any organic trouble. Of course, if I have a patient suffering from locomotor ataxia, or cancer, or tuberculosis in advanced stages, and that person has been taking drugs, I do not reduce such a patient. I believe it is no more than right to give it to them, and, even in those eases, 2 grains a day is enough.”
The druggist Freilich, indicted with Harris, and whose drug store was in the neighborhood of the latter's office, testified to going to the office of Harris and inquiring of him why he sent his patients to different druggists. Two days later Harris came to the drug store, and told him that the reason he sent his patients to a different druggist was that he received a commission for doing it, and that if Freilich was willing to do the same thing he would send the patients to him. Harris asked him whether he would pay him a cent on each grain of heroin and morphine. To this Freilich assented, and it was agreed that Harris would send his patients to him. Thereafter Harris was in the habit of calling every week at the drug store for his commissions. Sometimes Harris went over the books and figured up his commission, and sometimes it was done by Freilich. The largest amount Freilich remembered paying Harris in a single week amounted to about $90. He was always paid in cash. The arrangement for the payment of a commission to Harris applied to narcotics only. Freilich sold on the average about 4 or 5. ounces of narcotics a day, and there are 437% grains in an ounce. The testimony showed that during the months of Feb
The sufficiency of the indictment, has not been called in question, either in the court below or in this court. Such questions as are presented relate to the charge to the jury, and. to certain evidence which it is claimed was improperly received. At the conclusion of the charge to the jury the defendant’s counsel said:
“I take exception to that portion of your honor’s charge in which yon describe the circumstances under which a physician might prescribe in the course of his practice. I lake an exception to that portion in which yon say there is some corroboration of the witness BYeiiich.”
There were no other exceptions taken to the charge. There are eight assignments of error respecting the court’s charge to the jury concerning the prescribing of the drug.
“Of course, gentlemen, as I said to yon, you are the judges of the facts. I did not mean to express any opinion as to the truth or want of truth of any fact, but was only using them by way of illustration to apply the law to the case, and not to have you follow me as to any expression of opinions as to facts, because the jury is the exclusive judge of the fact.”
The instances are many in which evidence of the commission of other offenses is necessarily admissible. In Parker v. United States, 203 Fed. 950, 952, 122 C. C. A. 252, this court held that where evidence as to other offenses is clearly interwoven with the case on trial it is admissible. In Farmer v. United States, 223 Fed. 903, 139 C. C. A. 341, which was an indictment [or misuse of the mails in furtherance of a scheme to defraud in violation of section 215 of the Criminal Code (Comp. St. § 10385), we held that instances of frauds of exactly the same sort as charged, committed prior to the taking effect of the Criminal Code, were admissible to show intent. The opinion was written by Judge I,acombe, who pointed out that the opinion of this court in Marshall v. United States, 197 Fed. 511, 117 C. C. A. 65, was sui generis, and that there was nothing in it to support a contrary contention. And we understand the rule to be that, if intent or motive be one of the elements of the crime charged, evidence of other like conduct by the defendant at or near the time charged is admissible. Allis v. United States, 155 U. S. 117, 15 Sup. Ct. 36, 39 L. Ed. 91; Schultz v. United States, 200 Fed. 234, 237, 118 C. C. A. 420; Prettyman v. United States, 180 Fed. 30, 36, 103 C. C. A. 384; Walsh v. United States, 174 Fed. 615, 98 C. C. A. 461; Ex parte Glaser, 176 Fed. 702, 100 C. C. A. 254; Brown v. United States, 142 Fed. 1, 73 C. C. A. 187.
“Tims the action of the jury in acquitting the defendants of the conspiracy charge has (under the circumstances of this case) laid a heavy burden on the prosecution to uphold the conviction for substantive offenses. The verdict of not guilty of conspiracy left for the jury’s inevitable consideration a mass of testimony immaterial to the issues, passed upon adversely to these plaintiffs in error and their codefendants, yet extremely prejudicial to them. The possibility of this illogical and injurious result inevitably flows from the settled habit of prosecutors (in this circuit at least) of hitching on a conspiracy charge to a substantive count. We do not, of course, impugn the legality of ihe practice. Usually the same evidence proves the conspiracy and the substance; sometimes the substance is never reached, the criminal effort does not get so far, and conspiracy alone is proved; but to acquit of conspiracy, and convict of substance, produces a condition requiring a scanning of the record to ascertain whether, under cover of the unsuccessful charge, the successful one (over due objection) has been bolstered up.”
The reversal in that case was due to errors in the charge to the jury, to prejudicial statements made by the trial judge in the presence of the jury, and because a mass of testimony which was admitted under the
The case under consideration now, it may he admitted, is one which justifies a scanning of the record to ascertain whether, under cover of the unsuccessful charge of conspiracy the successful charge of the substantive offenses (over due objection) has been bolstered up. The record in this case will be searched in vain, however, to find testimony which, having been introduced to prove the conspiracy count and while immaterial to the issues' involved under the substantive counts, was yet used to sustain them. It appears, moreover, that defendant did not object to the reception of any of the evidence; that he did not seek to limit any of it to any particular count; that there was no offer under the conspiracy count of any of the evidence now objected to, and no direction of the court that any of it should be so received.
Judgment affirmed.
“That said Leopold Harris on April 5, 1919, in tbe Southern District of New York, and within the jurisdiction of this court, did unlawfully, knowingly and willfully aid, abet, counsel, command, induce, and procure the said Joseph Freilich to sell, barter, dispense, distribute, and give the aforesaid 59% grains of heroin and the said 4 grains of cocaine to the said Matthew McGovern, not in pursuance of any written order of the said Matthew McGovern on a form issued in blank for that purpose by the Commissioner of Internal Revenue of the United States, against the peace of the United States and their dignity, and contrary to the form of the statute of the United States in such ease made and provided (Act of December 17, 1914, and section 332, U. S. C. C.).”