260 F. 923 | 3rd Cir. | 1919
Ellsworth J. Trader, the plaintiff in error, was indicted and convicted for violating certain of the provisions of the so-called Harrison Narcotic Drug Act of December 17, 1914 (38 Stat. 785, c. 1 [Comp. St. §§ 6287g-6287q]). The indictment contains 21 counts. The first 10 counts charge Trader with dispensing morphine sulphate, a derivative or salt of opium, to various individuals without the written orders required by section 2 of the act; the next 10 counts charge him with selling, as a dealer, the same drug to the same persons without having registered as a dealer in such drug and without having paid the special tax, as required by section 1 of the act; and the remaining count charges him with a violation of another provision of section 2, in that he obtained, by means of the order forms provided for in the act, large amounts of the drug for purposes other than the use thereof by him in the legitimate practice of his profession as a physician, namely, for sale by him as a dealer, although he had not registered as such a dealer and had not paid the special tax as required by the act.
It is not questioned, and was not at the trial, that the issues of fact were thus properly stated and submitted to the jury; nor is it denied that as a proposition of law the defendant’s guilt or innocence depended upon the answer which the jury might make, to the before-mentioned questions of fact. As the defendant was not registered as
The principal error assigned and relied upon is the refusal of the trial judge to charge, without qualification, one of the requests or points for instruction to the jury, namely, that the act “does not limit the amount of morphine sulphate which a physician may prescribe or administer to his patients.” The learned trial judge charged the jury that, while the act “does not in specific terms” create such a limitation, “it does provide that such drug must be prescribed in the course of his professional practice only.” It is true that the act does not in specific terms state how much morphine sulphate may be prescribed or administered by a physician to his patients. It does, however, exempt physicians, in the dispensing and distributing of the drugs covered by the act. from the requirements of section 2 only in such cases as are “in the course of his professional practice only.”
The regulations promulgated by the Commissioner of Internal Revenue, pursuant to the authority conferred by section 1 of the act, provide for separate and distinct registration by dealers and physicians. Hence, if the defendant dispensed the drug in question not in the legitimate practice of his profession, he became a dealer in the drug and was required to register as such. Therefore whether he was a dealer depended upon whether or not he was dispensing the drug in the course of his legitimate practice as a physician. Likewise the legality of his acts in obtaining the drug by means of the statutory order forms was dependent upon whether he acquired it for use “in the legitimate practice of his profession.” Manifestly, therefore, so far as the issues in this case are concerned, there is in the act just such a limitation as the learned trial judge stated. Accordingly the qualification which he made in the request or point for instruction to the jury was not only entirely proper, but, as it seems to us, was quite necessary in order that the jury might not be misled and confused. It merely reiterated in another way what had been before stated, and what admittedly was the decisive question in the case.
The only other alleged error relied upon is that certain of the language used by the trial judge — his choice of words, in reiterating to the jury the questions to be decided by them — was prejudicial to thé defendant. This objection is, in our judgment, so utterly without merit as to need no discussion.
The judgment below is accordingly affirmed.