297 F. 20 | 8th Cir. | 1924
The plaintiff in error, a physician, hereafter called defendant, was tried under an indictment, charging in each of 19 separate cotints, a violation of the Harrison Act (38 Stat. 785' [Comp. St. §§ 6287g-6287q]), as amended by sections 1006, 1007, 40 Stat. 1130 (Comp. St. Ann. Supp. 1919, §§ 6287g, 6287/).
In this case the indictment not only sets out the names of these purchasers, with the allegation that their true names are unknown, but it further sets forth each of the prescriptions in full, including the serial number on the prescriptions, the name and purported address of the person prescribed for. There is no claim made that the defendant was misled in his defense, and he undertook as a witness to justify in detail the giving of each prescription. The claim of a material variance cannot be sustained.
There was sufficient evidence under count 6 to show knowledge by the druggist of the unlawful purpose of the prescription, as the 'druggist as a witness admitted that the arrangement between the defendant and himself contemplated sales to addicts indiscriminately under cover of the blank prescriptions left by defendant for that purpose. There was testimony relating to the druggist who filled the prescriptions described in counts 5, 9, and 10, tending to show many sales to these and other purchasers on similar prescriptions at and before these dates; some of the addicts obtaining the drugs almost daily in amounts of 20 grains of the morphine preparation. The prescriptions filled for the purchasers under these three counts called for 20 grains of morphine sulphate and 10 of cocaine hydrochloride, for 15 grains of morphine sulphate and 10 grains of cocaine hydrochloride, and for 20 grains of morphine sulphate. The amount of the drugs furnished on so many occasions, as compared with the ordinary doses, as described in United States v. Behrman, 258 U. S. 280, 289, 42 Sup. Ct. 303, 66 L. Ed. 619, of one-fifth of a grain of morphine, and of one-eighth to one-fourth of a grain of cocaine, was evidence of notice to the druggist that these amounts, which one of the witnesses, a physician, described as fatal if taken at one time, and which were not furnished in broken amounts, and were furnished without directions on the prescriptions, other than to be used as directed, were to be used merely to gratify the cravings of addicts. One of these prescriptions on its face showed the purchaser to have been using the drugs for three years. The evidence under the fourth count does not show any dealing by the druggist filling that prescription on any other occasion. The amount of morphine was 20 grains and of cocaine was 10 grains, but the single instance of filling such a prescription, without more, was not sufficient evidence to show the druggist’s knowledge of an unauthorized prescription.
The judgment will be reversed as to the conviction under count 4, and affirmed as to the conviction under the remaining counts.