260 F. 137 | 2d Cir. | 1919
The plaintiff in error Workin was the owner of a drug store at 125th street and Eighth avenue, New York City. Meyers was a licensed druggist. Workin had been a salesman for a manufacturing concern, and with one Dr. Essendon entered the pharmacy business, calling their store the “Medicine Shop.” Dr. Es-sendon maintained an office in the back of the drug store, and shortly thereafter withdrew from the partnership. Thereafter Workin always had associated with him some doctor who had an office in the rear of the store. After such relationship with some four doctors, Dr. Corish, came in response to an advertisement inserted in a newspaper by Workin, and established his office in the rear of the drug store. Prior thereto, Meyers assumed charge of the “Medicine Shop,” and when Corish appeared, Meyers made the arrangements for the hire of the room.
It charged that the plaintiffs in error conspired to procure Dr. Corish, a practicing physician, to issue narcotic prescriptions to persons to whom the drug was to be sold, the plaintiffs in error knowing and intending that the said prescriptions were given by Dr. Corish not in the course of his professional practice nor in good faith, and further that the recipients of such prescriptions would be induced by them to present the prescriptions at the drug store maintained by them, and that they would fill the prescriptions and dispense and distribute to the persons the kind and quality of drugs called for by them. Overt acts are alleged to have been committed in furtherance of the conspiracy, and, further, that Dr. Corish, as overt acts, issued to three certain persons, prescriptions for heroin which were sold and dispensed to the said certain persons by Workin and Meyers, as called for by the prescriptions.
The statute provides:
“That it shall be unlawful for any person to sell * * * any of the aforesaid drugs except in pursuance of a written order * * * on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. * * * 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 * * * registered under this act in the course of his professional practice only. * * *
“(b) To the sale * * * by a dealer to a consumer under and in pursuance of a written prescription issued by a physician, * * * registered under this act. * * *
*139 “The commissioner * * * shall cause suitable forms to be prepared * * * to be distributed to collectors of internal revenue for sale by them.”1
The district judge submitted the case to the jury, instructing them that they may find the plaintiffs in error guilty if the concerted action of two or all of them was simply a mere means hy which this drug should be distributed to unfortunate addicts who had indulged in the practice of using the drugs and who purchased, in the manner described by the witnesses, from the plaintiffs in error to satisfy their craving, or whether there was a genuine effort to secure their convalescence from what may be regarded as a disease. The evidence presented by the government required the submission of the guilt or innocence of the defendants to the jury. We are obliged to accept their finding.
The first assignment of error raises the constitutionality of the so-called “Harrison Act.” Since the argument of the appeal and before our decision, the Supreme Court has decided that the law is constitutional, and that a conviction for crime thereunder will be sustained. Webb v. U. S., 249 U. S. 96, 39 Sup. Ct. 217, 63 L. Ed. 497; U. S. v. Doremus, 249 U. S. 86, 39 Sup. Ct. 214, 63 L. Ed. 493, decided March 3, 1919. No further discussion is necessary as to this assignment of error.
In the case of Marshall v.U. S., 197 Fed. 511, 117 C. C. A. 65, relied upon by the plaintiffs in error, the defendant was charged with a scheme to defraud and for using the mails in furtherance of the scheme. The defendant organized a so-called society to carry out; this purpose. Evidence was offered on the trial that the defendant had also organized another society for the purpose of promoting another scheme to defraud. It was held that these were independent transactions, and'evidence of the second transaction could not be properly received to prove the intent or guilt of the defendant as to the first.
In Hammer v. U. S., 249 Fed. 336, 161 C. C. A. 344, the defendant was charged with selling drugs in violation of the Harrison Act. Evidence was introduced showing that the defendant did business in Florida, and there conducted a medical institute frequented by dopers and persons who were sick. This court approved the receipts of evidence to show that before and after the date of the commission of the specific act charged the defendant sold drugs to others.
Thus, to permit testimony of other sales of drugs, it must be made to appear that there is some real connection between the extraneous crime and the crime charged, and it is only in the case where committed offenses are proven, which are unrelated to the subject-matter of the indictment and which the accused is not summoned into court to meet, that the courts hold the receipt of such testimony is improper. Scheinberg v. U. S., 213 Fed. 757, 130 C. C. A. 271, Ann. Cas. 1914D, 1258.
Here there was a direct and immediate connection between the transaction involving Dr. Corish and the transactions involving Dr. Booth. The employment or association of Dr. Booth immediately after that of Dr. Corish indicated but a plan to continue the service of another physician in order to obtain some one to issue these prescriptions. Merely because Dr. Corish may have withdrawn from the conspiracy, after which Dr. Booth joined the conspiracy, if the conspiracy continued until the date of the filing of the indictment, did not make incompetent evidence to show what Dr. Booth and the plaintiff in' error did in furtherance of the conspiracy, for such acts constitute part of it. We think, further, that the transactions or acts of Dr. Booth were so closely related to the act in question as to show that they all sprang from a common design. Williamson v. U. S., 207 U.
We find no error in the admission of this testimony.
Proof is ample to justify the conclusion that the plaintiffs in error conspired to violate this statute and used Dr. Corish to write prescriptions for narcotics without any relation to the prospect of curing the disease or its alleviation. The evidence is ample that the plaintiffs in error conspired that the prescriptions should not be issued in good faith.
We find no error in the record which warrants the' granting of a new trial. Judgment affirmed.