241 F. 542 | S.D. Fla. | 1917
On February 21, 1917, the grand jury presented seven indictments: Nos. 282 and 287 being against the defendants. Hammers and Bruce for conspiracy to violate the Harrison Anti-Narcotic Act, and the others against the defendant R. C. Hammers, charging violations of the same act.
Demurrers were interposed to each of said indictments by the defendant or defendants on various grounds. Some of these grounds are common to each of the indictments. The seventh ground of demurrer to No. 272 raises the question whether the indictment should allege that cocaine is a salt, derivative, compound, manufacture, or preparation of coca leaves. Some of the indictments charge the sale of morphine sulphate, and others of morphine. The same question is made to each of these, and what is said of cocaine equally applies to morphine sulphate and morphine.
■‘Judicial notice or knowledge may be defined as the cognizance of certain facts which judges and jurors may, under the rules of legal procedure or otherwise, properly take and act upon without proof because they already know them.” 16 Cyc. 849.
‘•That which is judicially known need not bo proven.” State v. Downs, 148 Ind. 824, 47 N. E. 670.
In the state cases referred to in the brief filed for the defendants, the exact question in the instant cáse does not seem to have been
The Congress in passing this act specifically ñames opium or coca leaves, and then, to cover the ground fully, proceeds with, “Or any compound, manufacture, salt, derivative, or preparation thereof.” Under the rules of criminal pleading requiring that the defendant shall be informed of the charge to be met, it seems to me that the indictment, to comply with this rule in cases where the charge is not selling opium or coca leaves, should state that the article sold was either a compound or manufacture, salt, derivative, or preparation of either opium or coca leaves; that when so stated it becomes a matter of proof to be submitted to the jury, and unless so stated the indictment is defective in substance, and not form merely.
"(a) 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:
“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, the date, and the name and address of the 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 sh^ll personally, attend.’'
The contention of the defendants is that, without the allegation in the indictment negativing that tire physician personally attended upon the person to whom the drug was dispensed or distributed, no legal requirement is- shown to keep the record mentioned in the proviso. The United States Attorney contends, on the other hand, that this is a matter of defense.
It seems to me that it is necessary to show that a record was legally required to be kept before a defendant can be prosecuted for a failure to keep such record, and unless this exception, which is contained in the very belly of the description of the offense, is negatived, no violation of the act is set forth.
There are many other grounds set forth in the different demurrers, not considered by me, for the reason that the two grounds above noticed are common to all the indictments, except Nos. 282 and 287, to which the last ground discussed does not apply, and necessitate the sustaining of demurrers.