1. In a case properly here on a constitutional question under
Jud.Code § 238, the court retains its jurisdiction to decide other
questions presented, after the constitutional question has been
settled in another case. P.
254 U. S.
191.
2. In an indictment charging defendant with unlawfully selling
morphine
Page 254 U. S. 190
in violation of the Anti-Narcotic Act by issuing a prescription,
the clause as to issuing the prescription, being intimately
involved in the description of the offense, cannot be treated as
surplusage, but it is not repugnant to the charge of selling,
since, under the act, one person may take a principal part in a
prohibited sale of morphine belonging to another by issuing a
prescription for it, in view of Crim.Code, § 332, making whoever
aids, abets, counsels, commands, induces, or procures the
commission of an offense as principal. P.
254 U. S.
192.
3. Subdivision (a) of § 2 of the Anti-Narcotic Act, in allowing
the dispensing or distribution of narcotic drugs "to a patient" by
a registered physician "in the course of his professional practice
only," confines the immunity strictly within the appropriate bounds
of a physician's professional practice, not permitting sales to
dealers or distributions intended to satisfy the appetites or
cravings of persons addicted to the use of such drugs. P.
254 U. S.
194.
4. In a criminal prosecution in the district court in
Pennsylvania, the defendant's wife is not competent to testify for
her husband, either generally or by contradicting testimony that
certain matters transpired in her presence. P.
254 U. S.
195.
253 F. 213 affirmed.
The case is stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
Plaintiff in error was indicted and convicted for violating § 2
of an Act of Congress approved December 17, 1914, commonly known as
the Harrison Anti-Narcotic Act (38 Stat. 785, c. 1).
* His motion in
arrest of judgment having
Page 254 U. S. 191
been overruled (253 F. 213), he brought the case here by direct
writ of error under § 238 Judicial Code upon the ground of the
unconstitutionality of the act. Afterwards, this question was set
at rest by our decision in
United States v. Doremus,
249 U. S. 86,
sustaining the act, but our jurisdiction continues for the purpose
of disposing of other questions raised in the record.
Brolan v.
United States, 236 U. S. 216;
Pierce v. United States, 252 U. S. 239.
These questions relate to the sufficiency of the indictment, the
adequacy of the evidence to warrant a conviction, the admissibility
of certain evidence offered by defendant and rejected by the trial
court, and the instructions given and refused to be given to the
jury.
The indictment contained twenty counts, differing only in
matters of detail. Defendant was convicted upon eight counts,
acquitted upon the others. Each count averred that, on a date
specified, at Pittsburgh, in the County of Allegheny, in the
Western District of Pennsylvania, and within the jurisdiction of
the court, defendant was a practicing physician, and did
unlawfully, willfully, knowingly, and feloniously sell, barter,
exchange, and give away certain derivatives and salts of opium,
to-wit, a specified quantity of morphine sulphate, to a person
named, not in pursuance of a written order from such person on a
form issued in blank for that purpose by the
Page 254 U. S. 192
Commissioner of Internal Revenue under the provisions of § 2 of
the act, "in manner following, to-wit, that the said Jin Fuey Moy,
at the time and place aforesaid, did issue and dispense" to the
person named a certain prescription of which a copy was set forth,
and that said person
"was not then and there a patient of the said Jin Fuey Moy, and
the said morphine sulphate was dispensed and distributed by the
said Jin Fuey Moy not in the course of his professional practice
only, contrary to the form of the act of Congress,"
etc.
It is objected that the act of selling or giving away a drug and
the act of issuing a prescription are so essentially different that
to allege that defendant sold the drug by issuing a prescription
for it amounts to a contradiction of terms, and the repugnance
renders the indictment fatally defective. The government suggests
that the clause as to issuing the prescription may be rejected as
surplusage; but we are inclined to think it enters so intimately
into the description of the offense intended to be charged that it
cannot be eliminated, and that, unless defendant could "sell," in a
criminal sense, by issuing a prescription, the indictment is bad.
If "selling" must be confined to a parting with one's own property,
there might be difficulty. But, by § 332 of the Criminal Code:
"Whoever directly commits any act constituting an offense
defined in any law of the United States, or aids, abets, counsels,
commands, induces, or procures its commission is a principal."
Taking this together with the clauses quoted from § 2 of the
Anti-Narcotic Act, it is easy to see, and the evidence in this case
demonstrates, that one may take a principal part in a prohibited
sale of an opium derivative belonging to another person by
unlawfully issuing a prescription to the would-be purchaser. Hence,
there is no necessary repugnance between prescribing and selling,
and the indictment must be sustained.
The evidence shows that defendant was a practicing
Page 254 U. S. 193
physician in Pittsburgh, registered under the act so as to be
allowed to dispense or distribute opium and its derivatives without
a written order in official form, "in the course of his
professional practice only;" that he was in the habit of issuing
prescriptions for morphine sulphate without such written order and
not in the ordinary course of professional practice; that he issued
them to persons not his patients and not previously known to him,
professed morphine users, for the mere purpose, as the jury might
find, of enabling such persons to continue the use of the drug, or
to sell it to others; in some cases, he made a superficial physical
examination, in others, none at all; his prescriptions called for
large quantities of morphine -- 8 to 16 drams at a time -- to be
used "as directed," while the directions left the recipient free to
use the drug virtually as he pleased. His charges were not
according to the usual practice of medical men, but according to
the amount of the drug prescribed, being invariably one dollar per
dram. All the prescriptions were filled at a single drugstore in
Pittsburgh, the recipients being sent there by defendant for the
purpose, and persons inquiring at that drugstore for morphine were
sent to defendant for a prescription. The circumstances strongly
tended to show cooperation between defendant and the proprietors of
the drugstore. At and about the dates specified in the indictment
-- the spring of the year 1917 -- and for more than two years
before, the number of prescriptions issued by defendant and filled
at this drugstore ran into the hundreds each month, all calling for
morphine sulphate or morphine tablets in large quantities. In one
case, a witness who had procured from defendant two prescriptions
-- one in his own name for 10 drams, the other in the name of a
fictitious wife for 6 drams -- and had been directed by defendant
to the specified drugstore in order to have them filled, asked
defendant to confirm the prescriptions by telephone so there would
be no trouble, to which defendant replied:
Page 254 U. S. 194
"Oh, never mind; we do business together; we understand each
other." On another occasion, the same witness, having received from
defendant two prescriptions for 8 drams each, one in his own name,
the other in the name of the supposed wife, stating in one case a
Cleveland address, in the other a Pittsburgh address, presented
them at the drugstore to be filled and was told by the manager that
he would not fill any more prescriptions under a Pittsburgh
address;
"they were taking too big a chance, and I must go back to the
Chinaman and tell him what he told me, and he would understand --
the Chinaman would understand."
Witness returned the two prescriptions to defendant, told him
what the manager had said, and defendant retained those
prescriptions and issued to the witness a new one for 16 drams in
place of them, with which the witness returned to the drugstore and
procured the specified quantity of the drug.
In each case where defendant was found guilty, the evidence
fully warranted the jury in finding that he aided, abetted, and
procured a sale of morphine sulphate without written order upon a
blank form issued by the Commissioner of Internal Revenue, and that
he did this by means of a prescription issued not to a patient and
not in the course of his professional practice, contrary to the
prohibition of § 2 of the act. Manifestly the phrases "to a
patient" and "in the course of his professional practice only" are
intended to confine the immunity of a registered physician, in
dispensing the narcotic drugs mentioned in the act, strictly within
the appropriate bounds of a physician's professional practice, and
not to extend it to include a sale to a dealer or a distribution
intended to cater to the appetite or satisfy the craving of one
addicted to the use of the drug. A "prescription" issued for either
of the latter purposes protects neither the physician who issues it
nor the dealer who knowingly accepts and fills it.
Webb v.
United States, 249 U. S. 96.
Page 254 U. S. 195
Errors assigned to the instructions given and refused to be
given by the trial judge to the jury are disposed of by what we
have said.
But a single point remains -- hardly requiring mention -- the
refusal to permit defendant's wife to testify in his behalf. It is
conceded that she was not a competent witness for all purposes, a
wife's evidence not having been admissible at the time of the first
Judiciary Act, and the relaxation of the rule in this regard by §
858, Rev.Stats., being confined to civil actions.
Logan v.
United States, 144 U. S. 263,
144 U. S.
299-302;
Hendrix v. United States, 219 U. S.
79,
219 U. S. 91.
But, it is said, the general rule does not apply to exclude the
wife's evidence in the present case, because she was offered not
"in behalf of her husband" -- that is, not to prove his innocence,
but simply to contradict the testimony of particular witnesses for
the government who had testified to certain matters as having
transpired in her presence. The distinction is without substance.
The rule that excludes a wife from testifying for her husband is
based upon her interest in the event, and applies irrespective of
the kind of testimony she might give.
The judgment under review is
Affirmed.
*
"Sec. 2. That it shall be unlawful for any person to sell,
barter, exchange, or give away any of the aforesaid drugs except in
pursuance of a written order of the person to whom such article is
sold, bartered, exchanged, or given, 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, 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 shall personally attend; . . ."
"(b) To the sale, dispensing, or distribution of any of the
aforesaid drugs by a dealer to a consumer under and in pursuance of
a written prescription issued by a physician, dentist, or
veterinary surgeon registered under this act. . . ."