253 F. 213 | W.D. Pa. | 1918
The defendant was indicted under section 2 of the Harrison Anti-Narcotic Act (Act Dec. 17, 1914, c. 1,
The reasons assigned in support of this motion are: First, the so-called Harrison Anti-Narcotic Act is unconstitutional and void; second, the so-called Harrison Anti-Narcotic Act is unconstitutional and void, so far as it does or attempts to control and regulate the practice of a physician; third, the indictment as a whole does not charge the defendant with the commission of any .offense prohibited by the so-called Harrison Anti-Narcotic Act, or with the commission of an offense prohibited by any other law of the United States; fourth, there was no competent evidence submitted upon the part of the United'States to sustain the verdict rendered by the jury.
“That after the first day of April, 1909, it shall be unlawful to import into the United States Opium in any form or any preparation or derivative thereof: Provided, that opium and preparations and derivatives thereof, other than smoking opium or opium prepared for smoking, may be imported for medicinal purposes only, under regulations which the Secretary of the Treasury is hereby authorized to prescribe, and when so imported shall be subject to the duties which are now or may hereafter be imposed by law.”
The second section (sectiop 8801) provides a maximum punishment of two years’ imprisonment and $5,000 fine, of any person who shall fraudulently or knowingly import or assist in doing so, any opium or derivative thereof contrary to law, or who shall receive, conceal, buy, sell, or in any manner facilitate the transportation; concealment, or sale of such drug after importation, knowing the same to- have been imported contrary to law. It further provides that the drug shall be forfeited and destroyed, and that possession of such drug shall be deemed sufficient evidence, if unexplained, to authorize conviction of the person in possession thereof.
It is plain that Congress had the power to prohibit altogether the importation from foreign shores of this deadly narcotic, or they had the right to admit it under- such restrictions as to its use, in protection of the public, as they might see fit to impose. And having done so, they may prescribe such regulations, penal or otherwise, as will effect the purpose intended; that is, to restrict its use to that for which alone it was admitted.
“A statute must be construed, if fairly possible, so as to avoid, not only the conclusion that it is unconstitutional, but also grave doubts upon that score.”
In the same opinion the court said:
“It inay be assumed that the statute Ltho Harrison Act] has a moral end as well as revenue in view, but we are of opinion that the District Court, in treating those ends as to be reached only through a revenue measure and within the limits of a revenue measure, was right.”
I am not convinced that the Congress in enacting the Harrison law exceeded its constitutional powers, and the motion in arrest of judgment on this ground cannot be sustained.
“Nothing contained in this section shall apply (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”
—with certain requirements as to the keeping of records. As it was not necessary in this case for the pleader to negative the exception, the only question is: Is there anything in the subsequent words of the indictment that destroys the legal effect of the previous words, wherein the charge is specifically and legally made? After charging the offense as above quoted, the indictment proceeds:
“That is to say, that at the time and place aforesaid ho, the said Jin Fuey Moy, did unlawfully and willfully, knowingly and feloniously sell, barter, ex*216 change, give away, dispense and distribute to the party named twelve dram» of morphine sulphate in manner following, to wit, that the said Jin Fuey Moy at the time and. place aforesaid, did issue and dispense to the said party a certain prescription, a copy of which is as follows: [Then follows a copy of the prescription signed by the defendant, wherein the morphine sulphate is prescribed to be used as directed] — and the said party [naming him] was not then and there a patient of the said Jin Fuey Moy, and the said morphine sulphate was dispensed and distjibuted by the said Jin Fuey Moy not in the course of his professional practice only, contrary to the form of the act,” etc.
The' offense under section 2 is to sell, barter, exchange, or give away .any of the prescribed drugs, except in pursuance of an order on the designated order form. The registered physician may successfully defend on the ground that he did not dispense or distribute the drug in question except to a patient in the course of his professional practice only. But this is a defense which must be set up by the physician, in order to escape the general requirements prescribed in section 2. The words in which exception (a) are negatived in the indictment must be read in the light of the words in which the offense . is charged under the general provisions of section 2. It is alleged under the videlicet that the defendant “did unlawfully, willfully, knowingly, and feloniously sell, barter, exchange, and give away,” with the additional words “dispense and distribute” to the party the drug in question. This is followed by giving the manner of the disposition of the drug, by the issuing of the prescription therein set forth. To this there can be but one meaning; that is, that the drugs were disposed of by means of the prescriptions. Then follow the words which take the physician out of the exception, namely, that the party was not a patient of the physician and the drug was dispensed and distributed by the physician not in the course of his professional practice only. It cannot be complained that the words “dispensed and distributed”- are not used- in the enacting clause of section 2. In order to escape the effect of the words “sell, barter, exchange, or give away,” used in the enacting clause of section 2, the physician must show that the drugs so disposed of were dispensed or distributed by him to a patient in tire course of his professional practice'. I held before, and still hold, that the indictment sufficiently charges a violation of section 2 of the Harrison Act.
In the last place, it is claimed that there was no competent evidence submitted on the part of the government to sustain the verdict of the jury. On the contrary, there was a superabundance of such evidence. Unless this section of the act is a dead letter, it would be hard to conceive a more flagrant case of its violation. The defendant seems to have obtained an extended and unenviable reputation as a dispenser of morphine sulphate. From Brooklyn to Chicago, from all the Lake cities, the victims of the drug habit came to Dr. Moy and procured the drugs. When we remember that the testimony showed that morphine sulphate is at least eight times as powerful and deadly as opium; that one-half grain is a large dose, and a grain a fatal dose to the nonuser; that there arc 60 grains in one dram, and that the defendant time and again issued prescriptions for as much as 16 drams to one person, or 960 grains, enough to kill an entire regiment; that he issued, in the two years preceding the indictment, 11,-687 prescriptions, calling for 15,796 drams, and in addition 43,200 one-half grain morphine tablets and. 30,600 one-quarter grain tablets, we can have some conception of the magnitude of the defendant’s unlawful business in the distribution of narcotics; and when we consider that for every dram prescribed he received $1, the commercial feature of the unlawful business becomes painfully and alarmingly apparent.
The motion in arrest of judgment is overruled.