The indictment in this case charged the plaintiff in error, a licensed physician practicing at Elkins, W. Va., with violating the Harrison Anti-Narcotic Drug Act (Comp. St. §§
There are but two questions involved in the case, viz.: Did the defendant, on or about the 7th of May, 1922, dispense, sell, or give away to J. W. McDonald, narcotic inspector, not in the regular course of his practice, 16 one-quarter grain morphine tablets, as alleged in count 1 and 6 one-quarter grain morphine tablets, on оr about the 6th of June, as alleged in the third count of the indictment? The contention of the government, and on which it bases its claim to support the verdict, is stated by its counsel as to count 1, as follows:
“The evidence of the government differs very materially from that of the defendant. It appears from the evidence of John Walter McDonald, the government narcotic inspector, that he went to Elkins оn or about the 3d day of May, 1922, to make an investigation of this case, calling at the office of the defendant on the same day that he reached said town. Said narcotic inspector told said defendant that he was an addict, and had been for about five years; that he used from one-half to a grain a day; that he asked defendant to supply him w,ith some morphine and defendant said: ‘Well, I am sorry, I cannot do anything for you to-day; I am on the square.’ Defendant then got up to leave, but remained about one half hour on the invitation of the defendant. This was on Monday. On the following Saturday witness was walking along Randolph avenue and met defendant, who said: ‘Hello there, how are you feeling to-day?’ After witness had returned the salutation, defendant said: ‘You look pretty well; have you been able to get anything?’ Witness then told defendant that he had picked up a couple of capsules at the station, but if he couldn’t get more he would have to leave town; that the defendant then asked witness to come to defendant’s office on Sunday morning, which date was May 7th. Witness went to ,the office of defendant as requested, and, on being asked his name, gave his right name and address, but told defendant he could make thе addressi Toledo, if he wanted to. Defendant in a subsequent prescription gave the address of witness as Elkins, W. Va, Witness further testified that defendant on this first occasion wrote a prescription for 12 tablets, one-fourth grain each, and handed to witness; then asked said witness if he cared if he (defendant) went after the drug himself, and on being told by witness that he had no objection, defendant took the prescription аnd tore it up. Witness stated he knew the prescription was for 12 tablets of morphine, one-fourth grain each, because he looked over the defendant’s shoulder while he was writing it; that defendant charged him nothing for writing the prescription; that the defendant made no examina*714 tion of the witness to ascertain whether he was suffering from any disease, and that witness had no order blank. The above is substantially the еvidence of the government as to first count on which defendant was convicted.”
And as to count 3, as follows:
“The witness McDonald testified that he again visited the defendant on June 3th, because defendant had promised to have some straight stuff, and that on this occasion he obtained some morphine sulphate, which in its original form comes in little blocks or cubes. The record does not make it clear how witness received this, whеther by prescription, or whether it was delivered to him by Dr. Newman. Witness further testified that he was not suffering from any disease, nor had he any pain of any kind, and that-no questions were asked him. This transaction is denied by the defendant. This is substantially all the evidence given touching count 3, on which defendant was found guilty.”
The material testimony in the case was confined 'almost entirely to the evidence of the government inspeсtor on the one hand, and the defendant on the other; the conflict between the two being sharp, but in many, matters of importance they are practically in harmony. The government’s counsel in their argument thus refer to the testimony:
“The evidence is very conflicting, consisting of assertions by the government witness McDonald, narcotic inspector, and denials by the defendant, the only two witnesses who have рersonal knowledge of the main facts. The chief and most important difference is as to whether the witness McDonald represented himself to be suffering from ulcers of the stomach and other maladies which caused him severe pain, and because of which he could not sleep at night, and whether the defendant made a physical examination in so far as he was able to do of said witness to ascertain whether he was malingering or not. These contradictions, however, apply wholly to counts 2 and 4, on which defendant was acquitted. The government concedes that this was a matter to be submitted to the jury.”
The acceptance by the jury of the defendant’s statement of the inspector’s account of his ailments and suffering throws much light on the real truth and facts of the case, and the result аs found by the jury cannot be brushed aside, because, as claimed, what was said applied only to the second and fourth counts.. These particulars, as to what the inspector represented his condition to be, bear most materially on the motive and intent with which the defendant acted in everything he did. Moreover the fact that the inspector and defendant are in substantial accord as to thе former’s effort on his first visit to procure the drug from the defendant, and of the defendant’s refusal to furnish the same, and that they do not differ substantially as to the occurrences and circumstances under which they met on the street several days or a week after the first meeting, is most material as throwing light on the action and motive of the defendant, as well as whose version should be accepted as true in thе subsequent occurrences. The differences between the inspector and the accused are chiefly that the inspector says he claimed to be a drug addict, and was not suffering from any physical ailment, and no examination was made to ascertain his condition, while the defendant says the inspector represented himself to be a retired druggist from Washington, whose health had broken down, аnd who was on that account staying in the mountains near Elkins, and that he had been forced to use drugs on
The jury acquitted the defendant under the counts for giving the prescriptions, thereby accepting the defendant’s statement over that of the inspector. The jury’s verdict on the more important counts very materially bears upon the gravity of the case, in the light of the sentence of the court. We can but feel that acquitting the defendant on two counts, leaving involved one for furnishing the drug twice, in a quantity that would not exceed in value, according to the price paid the druggist for filling the prescriptions, of about $1, and the gift of one-half of which is conceded by the inspector, greatly operated to minimize the importancе of the case.
Upon the return of the verdict, the defendant moved the court to set the same aside and grant him a new trial, which motion was overruled. Judgment was entered upon the verdict, and the defendant sentenced to pay a fine of $1,000, and the costs of the prosecution, and to imprisomnent in the United States penitentiary at Atlanta, Ga., at hard labor, for the term of ten years (five years оn each count). From that judgment this writ of error was sued out, and, no. supersedeas being allowed, the defendant is, as he has been for some months past, serving his term in the penitentiary.
Many assignments of error are presented for our consideration, which need not be taken up in detail, as in the court’s view, the case turns upon the action and ruling of the District Court on the efforts of the government’s counsel tо bring before the jury evidence of other offenses than those for which the defendant was being tried, and which resulted prejudicially to'the defendant. During the cross-examination of the defendant the government’s counsel asked him if he did not specialize in abortion cases, and further whether that had not been, in connection with dispensing drugs, the greater part of his practice, all of which he positively dеnied. On further cross-examination, he was asked if he had not, while at a local drug store to procure a drachm of morphine, which the clerk, a Mr. Clark, had to obtain from another drug store, leaving the defendant in charge of the store awaiting his return, taken from the back part of the store a certain bottle containing morphine, and carried the same to his office, without the knowledge of thе clerk, to which the defendant answered positively in the negative. Thereupon the defendant was asked especially if, just prior to the date of procuring the morphine on June 6, 1922¿ he
At the conclusion of the defendant’s testimony, the government called in rebuttal the drug clerk, Clark, who, over objection of the defendant, was allowed to go fully into the defendant’s applying for the morphine; of the witness’ going out to get the same, leaving the defendant in charge of thе drug store, and of the taking of the bottle containing morphine from the store, which, however, he did not miss until the next day, the 8th instant. This witness described the location of the place where the morphine was kept, and the habit of allowing persons to go behind the counter to the prescription department, as bearing upon the exclusiveness of the opportunity of the defendant to take the same. The court thereupon announced at the conclusion of the testimony of the witness Clark, as follows:
“The evidence is stricken out relative to the disappearance of the bottle containing morphine from the prescription case.”
The court apparently made no ruling excluding the questions as to larceny of the cocaine, and though the inquiries regarding the crime of abortion and that of dispensing drugs being the defendant’s chief business were promptly stopped, it was not until both matters had been illegally brought to the attention of the jury, and answered by the defendant.
While much discretion is reposed in trial courts as to the manner and method of procedure before them, including the introduction of testimony, still there are well-defined and fixed rules governing them, beyond which they must not go. The most imрortant thing to be attained is a fair and impartial trial, and anything that impugns or infringes, on this right, operating prejudicially to an accused, can never be allowed, and should not be sustained. It is axiomatic, and must be accepted in criminal trials, that accused are presumed to he innocent, and that their characters cannot be inquired into, unless put in issue by themselves, and, of course, other allegеd crimes committed, not related to the offense under trial, that tend to their prejudice and embarrassment in making their defenses, cannot be the subject of investigation in the pending trial of another case, under the guise of cross-examination, where the defendant offers himself as a witness, save in cases where intent is an essential ingredient, or the subject of inquiry is so related to the main offense as to throw material light thereon, and even in the latter cases, it will not be permitted, where to do, so would prejudice the accused. To say that what was doné in this case was prejudicial to the defendant, is to state the same but mildly.
The defendant, a licensed physician, evidently a man of some learning and intelligence, while under trial for a statutory offense of having given several prescriptions for mоrphine and dispensed same to one claimed not to be in fact a patient, and not in the legitimate course of his professional practice, is' suddenly put to the inquiry whether-or not his chief source of business was not that of a producer
Sight should not be lost of the fact that but little testimony is frequently necessary to raise prejudice against an 'accused in the position and under the circumstances of the defendant here, as well in the matter of the alleged theft, as the violation of the ethical rules governing the profession to which he belongs, respecting the other insinuations against him. What was said by this court in Bullard v. United States,
■ “We are not aware of any theory upon which this ruling can be defended. The subject-matter , of the. question addressed to Bullard was obviously collateral'to the issue on trial and the government was bound by his answer. Indeed, it is elementary that contradiction in such case is not * * * permissible. The district attorney, in pursuing an inquiry wholly unrelated to the charge under investigation, took the risk of replies which would defeat the effort to show that the witness was a man of bad character or otherwise unworthy of belief. * * * The prejudicial effect of this evidence can scarcely be doubted. Not only was it claimed to refuse Bullard’s assertion that the adultery indictment had been quashed, but the recitals in the ‘adjustment’ order, in terms and by inference, disclosed a condition of affairs in defendant’s household which the jury could not fail to regard as highly discreditable. That their verdict was influenced by the damaging impression which this order would naturally produce seems to us by no means improbable. * * * And the difficulty is that the mistaken ruling, however commendable its purpose, permitted the jury to find that Bullard was untruthful in saying that the adultery case had been quashed, and to further'find that he had in effect confessed an immorality which is*718 a criminal offense under the laws of South Carolina. The obvious tendency of the evidence, if the jury found against him on this collateral issue, was to place the defendant in a most unfavorable light and thereby give unfair support to the charge for which he was on trial. That the admission of this evidence was reversible error seems to us an unavoidable conclusion.”
Counsel for the United States cite in support of their claim to the right to introduce proof of other offences than that on trial, two cases from this court, viz. Fields v. United States,
The defendant in the tenth assignment of error urges that the judgment of the court should be set aside, as to allow its enforcement because of. its severity, would constitute excessive, cruel, and unusual рunishment, contrary to the Eighth Amendment of the Constitution of the United States. We do not deem it necessary, under our conclusions as hereinbefore stated, to consider this assignment further than to say, in view of a new trial of the case, should one, in the light of the punishment already received by the accused, be had, that from our viewpoint we do not see anything in the case to warrant severe or unusual punishment.
Reversed.