273 F. 792 | 2d Cir. | 1921
The defendant was tried upon four indictments, two of which were filed on October 3, 1917, one was filed on October 15, 1919, and the fourth on March 1, 1920. On March 10, 1920, ail four indictments were by order of the court consolidated. The trial began on May 3,1920, and was concluded on May 13. In the course of the trial counts 5, 8, 9, 10, 11, 12, 13, and 14 were dismissed. The indictments charged a violation of the Act of December 17, 1914, as amended by the Act of February 24, 1919. The act is what is known.' as the Harrison Narcotic Drug Act (Comp. St. §§ 6287g~6287q). The defendant was convicted on each of 13 separate counts, and was sentenced to four years’ imprisonment in the United States Penitentiary at Atlanta, the sentences to run concurrently on each of the counts upon which he was convicted.
This court again takes occasion to express its decided disapproval of allowing a long delay to intervene between the finding of indictments and the time of trial. There cannot be efficient administration of criminai law, if long delays occur between indictments and trials. We feel that this cannot be too strongly expressed. Those of us who have any part in administering criminal law are under the most serious obligation to prevent unnecessary delays^ in the prompt trial of all accused persons. This is due alike to society and to persons accused. The long delays which have occurred in this case are to be justified only by very extraordinary circumstances, which, if they exist, are not disclosed by anything which appears in the record, nor by any satisfactory statement at the argument. It was said that delay was occasioned by doubt concerning th§ constitutionality of the act, and a decision of the Supreme Court was expected and awaited. But the first indictment, as previously stated, was found in October, 1917, and
It should also be added that, if doubt existed as to the validity of the statute upon which the indictment was based, that was in our opinion not a reason for delaying the trial, but for hastening it to a conclusion, as no man should be allowed long to remain under the cloud of a possibly invalid indictment while courts exist in which the question can be determined. It is written into the Constitution (article 6) that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial,” and it is the duty of the sworn officers of the law to govern themselves accordingly. A dilatory administration, of the criminal law not alone violates the rights of accused persons, but is also discreditable to the country and prejudicial to the protection of life and property.
“That it shall be unlawful for 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. * * * Nothing contained in this section shall apply — (a) To 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: Provided, that such physician, dentist, or veterinary surgeon shall keep a record of all such drugs dispensed or distributed, showing the amount dispensed or distributed, tlie date, and the name and address of tho patient to whom such drugs are dispensed or distributed, except such as may be dispensed or distributed to a patient upon whom such physician, dentist or veterinary surgeon shall personally attend; and such record shall be kept for a period of two years from the date of dispensing or distributing such drugs, subject to inspection, as provided in this act.” Comp. St. § 6287h.
The defendant was engaged in the practice of medicine in the city of Yew York and was registered with the collector of internal revenue of the United States as a dealer in and dispenser of opium and coca leaves and their, salts, derivatives, and their compounds. He had made, according to his testimony, some special study of drug addiction, and maintained a small sanitarium for drug addicts, into which he received for treatment in the course of four years only 38 patients, although during the same period he dispensed narcotics to from 1,000 to 1,500 addicts. He admitted upon the stand that in February, 1920, persons to the number of 80 were coming to him for narcotics in a single day. The testimony was that the addicts paid him $1 for a day’s supply of the drug and $3 for three days’ supply. In his dealings with patients the payments were all cash transactions. The following is from his cross-examination:
“These addicts paid you $1, $2, $3, sometimes $4, sometimes $5, sometimes working; is that correct? A, Yes, sir.”
In the year from February 1,1919, to February 1, 1920, he dispensed 95,175 grains of heroin and 53,779 grains of morphine. A number of those who had been furnished with the drug by him testified at the trial. One addict began getting heroin from him in January, 1916. and continued receiving it to August 10, 1917, and from July 26, 1918, to February 3, 1920; during these periods it appeared that the defendant was furnishing the drug without any substantial reduction in
There are 29 assignments of error, but all except 4 were abandoned at the argument in this court. Those relied upon are as follows:
(1) That the evidence did not sustain the allegations of the indictments and did not show that the defendant had been guilty of any offense against the laws and statutes of the United States.
(2) The refusal of the court to permit defendant’s counsel to ascertain whether or not any of the jurors had preconceived ideas as to the treatment of drug addicts.
(3) The refusal of the court to strike out testimony showing the quantities of narcotics purchased by the defendant after the court had dismissed the indictment charging the. defendant with purchasing drugs for use not in the course of his practice.
(4) The refusal of the court to permit the defendant to bring out facts and the law in relation to the registration of addicts under the New York state law.
We shall consider them in the above order.
As respects the first of the errors assigned, if the evidence did not sustain the allegations of the indictment and did not show that defendant was guilty of any offense against the act, then the court was plainly in error in denying the motions to take the case from the jury. The motion for a dismissal of the indictment and for the direction of a verdict was upon the following grounds:
(1) That there was no proof that through the alleged misconduct of the defendant the government failed to collect all the taxes it was entitled to.
(2) That the defendant’s method of treatment of drug addiction was in itself wrongfully made the main issue in the case; that the defendant, as a physician, was entitled under the law himself to judge as to what narcotics should be dispensed to patients, without a review of his decision by a jury.
(3) That the proof by the government’s expert witness failed to disclose that there was any well-recognized method of successful treatment of drug addiction.
“I am not going to have methods of treatment discussed here to any elaborate extent. They can be asked the question whether they would be so prejudiced in regard to any idea they have about treatment, if you want to, that would influence their impartial judgment of the case, or whether they will try the case according to the evidence and the law given by the court.”
Again, counsel for defendants asked a juryman whether he had formed any idea, while serving on the grand jury, as to what a doctor should do, to which counsel for the_government objected, and the objection was sustained. Counsel for defendant desired to ask the juror whether, as a result of hearing grand jury cases, he had any notions as to what a doctor should do, and the court stated that such question was improper. Again, a juror was asked what a doctor should do in his practice of treating an addict, to which objection was made and the objection sustained.
These rulings cannot be held error, By the great weight of authority a juror is not disqualified, even if he has an opinion, if he states that it will not affect his verdict, and the court is satisfied of the truth of his statement. Jones v. State, 181 Ala. 63, 61 South. 434; Forte v. People, 57 Colo. 450, 140 Pac. 789; Commonwealth v. Minney, 216 Pa. 149, 65 Atl. 31, 116 Am. St. Rep. 763; State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89; People v. McGonegal, 136 N. Y. 62. 32 N. E. 616; State v. Salgado, 38 Nev. 64, 145 Pac. 919, 150 Pac. 764; State v. Owen, 126 La. 646, 52 South. 860; Whitehead v. State, 97 Miss. 537, 52 South. 259; State v. Banner, 149 N. C. 519, 63 S. E. 84; Palmer v. State, 121 Tenn. 465, 118 S. W. 1022; Russell v. State, 53 Tex. Cr. R. 500, 111 S. W. 658; Hall v. Commonwealth, 89 Va. 171, 15 S. E. 517; State v. Hudson, 110 Iowa, 663, 80 N. W. 232.
It is said that the rule established at an early day in England was that no opinion previously formed or expressed by a juror as to the merits of a case was sufficient to disqualify him, unless it proceeded from actual favor or ill will towards one of the parties, or was of
“light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of the testimony, constitute no sufficient objection to a juror, but that those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him.”
In Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244, a petit juror in a criminal case testified on his voire dire that he had formed an opinion as to the guilt or innocence of the accused, but that he did not think that it would influence his verdict. He was challenged for cause by the prisoner and the challenge was not allowed by the trial court. The Supreme Court, in an opinion written by Chief Justice Waite, held that this action of the trial court was not erroneous, but that if the juror had formed a positive and decided opinion he would have been incompetent. If a juror’s state of mind is such that he can weigh the testimony and render a verdict without bias or prejudice of any kind, he is competent. Partan v. United States (C. C. A.) 261 Fed. 515, 517.
In the case now before us the record shows that the court gave every opportunity to question the talesmen as to whether they had any ideas which would prevent them from deciding the case according to the evidence. In Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, 30 L. Ed. 708, the talesman stated on his voire dire that he had impressions as to the guilt or innocence of the person accused, and that they were possibly strong enough to create some bias or prejudice, but that he thought he could be guided by the evidence and try the case impartially. The court below held the juror competent, and the Supreme Court held that the judgment of the trial court as to the juror’s competency was conclusive. And see Holt v. United States, 218 U. S. 245, 248, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; Spies v. Illinois, 123 U. S. 131, 168, 8 Sup. Ct. 21, 22, 31 L. Ed. 80.
The defendant had a fair trial, and was in our opinion properly convicted of the criminal acts with which he was charged.
Judgment affirmed.
Since the filing of this opinion the United States attorney for the Southern district of New York has submitted to the court an extended statement of the history of the case and an explanation of how it happened that trial was so long delayed. The concluding portions of his statement are so important that it is due to him, although he has not requested it, and also due to the efficient administration of justice in the Southern district of New York, that they be stated in connection with the criticism which we have passed upon the delay which occurred in this case. The concluding portions of his statement follow:
“In the fiscal years 1917 to 1920, inclusive, and the 11 months of the present fiscal year between July 1, 1920, and May 31, 1921, the government eases in the District Court for the Southern District of New York and their disposition were as follows:
1917 1918 1919 1920 11 Mos. (1921)
New civil suits .....................186 233 515 1,204 1,898
Civil suits terminated ..............229 279 350 340 443
New criminal prosecutions ..........378 2,070 8,647 2,216 2,602
Criminal cases terminated ..........442 1,789 1,006 1,879 2,688
“It is impossible to correct the congestion on the court dockets until more [District] Judges are available. It would require three judges, sitting continuously, to dispose of the government’s criminal cases. There are now untried enough pending prosecutions under the mail fraud statute alone to occupy the full time of one judge for a year.
“Moreover, since I assumed my duties in June, 1917, there has been an enormous increase in the importance of the government’s civil litigation in this district. While I am unable at the moment to state the sum involved in 1917, the civil cases (exclusive of admiralty) which have been pending and are still pending this year involve nearly $70,000,000. In 1917 only a fraction of the time of one assistant was required for all the admiralty work in this district. To-day, there are on the dockets of the District Court here about 1,200 government admiralty cases, involving about $40,000,000.
“The liquor business handled is another illustration. During the current fiscal year upwards of 4,500 persons have been brought to this office charged with criminal violation of the Yolstead Act. By March 31st, 1,724 of these had been released after investigation and prosecutions had been instituted against 2,628 (combined into 1,749 cases). In addition, during the present fiscal year, 734 injunction suits have been commenced under the nuisance
“These facts indicate the problem of this office in the endeavor to keep Its work current.”