1. An exception in a statute defining an offense is met in an
indictment by alleging facts sufficient to show that the defendant
was not within the exception. P.
258 U. S.
287.
2. An indictment need only describe the crime with sufficient
clearness to show the violation of law and to inform the defendant
of the nature and cause of the accusation and enable him to plead
the judgment, if any, in bar of further prosecution for the same
offense. P.
258 U. S.
288.
3. An indictment for a statutory offense need not charge
scienter or intent if the statute does not make them
elements. P.
258 U. S.
288.
4. Under the Anti-Narcotic Act of December 17, 1914, c. 1, § 2,
38 Stat. 785, making it an offense to sell, barter, exchange or
give away certain drugs except in pursuance of a written order of
the person to whom such article is to be sold, etc., on an official
form, and providing that nothing in the section shall apply to the
dispensing or distribution of the drugs to a patient by a
registered physician in the course of his professional practice
only, or to their sale, dispensing, or distribution by a dealer to
a consumer in pursuance of a written prescription issued by a
registered physician, such a physician commits the offense if,
knowing a person to be habitually addicted to the use of such
drugs, and not purposing to treat him for any other disease, he
issues him prescriptions
Page 258 U. S. 281
for quantities sufficient to make a great number of doses, more
than enough to satisfy his craving if all consumed at one time,
intending that he shall use them by self-administration in divided
doses over a period of several days, and thus enables the addict to
obtain such excessive quantities, without other order, from a
pharmacist, and to have them in his possession and control with no
other restraint upon their administration or disposition than his
own weakened will. P.
258 U. S.
288.
Reversed.
Error to a judgment of the district court sustaining a demurrer
to an indictment.
Page 258 U. S. 285
MR. JUSTICE DAY delivered the opinion of the Court.
This case is here under the Criminal Appeals Act. 34 Stat. 1246.
The statute involved is the Narcotic Drug Act of December 17, 1914,
c. 1, § 2a, 38 Stat. 785, 786.
This statute, in § 2, subdivision a, makes it an offense to
sell, barter, exchange, or give away any of the narcotic drugs
named in the act 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. It is further provided that
nothing in the section shall apply to the dispensing or
distribution of any of the drugs to a patient of a registered
physician in the course of his professional practice only, or to
the sale, dispensing, or distribution of said drugs by a dealer to
a consumer in pursuance of a written prescription issued by a
physician registered under the act.
Page 258 U. S. 286
The indictment charges that the defendant did unlawfully sell,
barter, and give to Willie King a compound, manufacture, and
derivative of opium, to-wit, 150 grains of heroin and 360 grains of
morphine, and a compound, manufacture, and derivative of coca
leaves, to-wit, 210 grains of cocaine, not in pursuance of any
written order of King on a form issued for that purpose by the
Commissioner of Internal Revenue of the United States; that the
defendant was a duly licensed physician and registered under the
act, and issued three written orders to the said King in the form
of prescriptions signed by him, which prescriptions called for the
delivery to King of the amount of drugs above described; that the
defendant intended that King should obtain the drugs from the
druggist upon the said orders; that King did obtain upon said
orders drugs of the amount and kind above described pursuant to the
said prescriptions; that King was a person addicted to the habitual
use of morphine, heroin, and cocaine, and known by the defendant to
be so addicted; that King did not require the administration of
either morphine, heroin, or cocaine by reason of any disease other
than such addiction; that defendant did not dispense any of the
drugs for the purpose of treating any disease or condition other
than such addiction; that none of the drugs so dispensed by the
defendant was administered to or intended by the defendant to be
administered to King by the defendant or any nurse, or person
acting under the direction of the defendant, nor were any of the
drugs consumed or intended to be consumed by King in the presence
of the defendant, but that all of the drugs were put in the
possession or control of King, with the intention on the part of
the defendant that King would use the same by self-administration
in divided doses over a period of several days, the amount of each
of said drugs dispensed being more than sufficient or necessary to
satisfy the craving of King therefor, if consumed by him all at
one
Page 258 U. S. 287
time; that King was not in any way restrained or prevented from
disposing of the drugs in any manner he saw fit, and that the drugs
so dispensed by the defendant were in the form in which said drugs
are usually consumed by persons addicted to the habitual use
thereof to satisfy their craving therefor, and were adapted for
such consumption.
The question is: do the acts charged in this indictment
constitute an offense within the meaning of the statute. As we have
seen, the statute contains an exception to the effect that it shall
not apply to the dispensing or distribution of such drugs to a
patient by a registered physician in the course of his professional
practice only, nor to the sale, dispensing, or distribution of the
drugs by a dealer to a consumer under a written prescription by a
registered physician. The rule applicable to such statutes is that
it is enough to charge facts sufficient to show that the accused is
not within the exception.
United States v.
Cook, 17 Wall. 168,
84 U. S.
173.
The district judge who heard this case was of the opinion that
prescriptions in the regular course of practice did not include the
indiscriminate doling out of narcotics in such quantity to addicts
as charged in the indictment, but out of deference to what he
deemed to be the view of a local district judge in another case,
announced his willingness to follow such opinion until the question
could be passed upon by this Court, and sustained the demurrer. In
our opinion, the district judge who heard the case was right in his
conclusion, and should have overruled the demurrer.
Former decisions of this Court have held that the purpose of the
exception is to confine the distribution of these drugs to the
regular and lawful course of professional practice, and that not
everything called a prescription is necessarily such.
Webb v.
United States, 249 U. S. 96;
Jin Fuey Moy v. United States, 254 U.
S. 189.
Page 258 U. S. 288
Of this phase of the act, this Court said in the
Jin Fuey
Moy case, p.
254 U. S.
194:
"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 he 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."
It is enough to sustain an indictment that the offense be
described with sufficient clearness to show a violation of law, and
to enable the accused to know the nature and cause of the
accusation and to plead the judgment, if one be rendered, in bar of
further prosecution for the same offense. If the offense be a
statutory one, and intent or knowledge is not made an element of
it, the indictment need not charge such knowledge or intent.
United States v. Smith, 2 Mason, 143;
United States v.
Miller, Fed.Cas. No. 15,775;
United States v. Jacoby,
Fed.Cas. No. 15,462;
United States v. Ulrici, Fed.Cas. No.
16,594 (opinion by Miller, Circuit Justice);
United States v.
Bayaud, 16 F. 376, 383, 374;
United States v.
Jackson, 25 F. 548, 550;
United States v. Guthrie,
171 F. 528, 531;
United States v. Balint & Randazzo,
ante, 258 U. S. 250.
It may be admitted that to prescribe a single dose or even a
number of doses may not bring a physician within the penalties of
the act; but what is here charged is that the defendant physician,
by means of prescriptions, has enabled one known by him to be an
addict to obtain from a pharmacist the enormous number of doses
contained in 150 grains of heroin, 360 grains of morphine,
Page 258 U. S. 289
and 210 grains of cocaine. As shown by Wood's United States
Dispensatory, a standard work in general use, the ordinary does of
morphine is one-fifth of a grain, of cocaine one-eighth to
one-fourth of a grain, of heroin one-sixteenth to one-eighth of a
grain. By these standards, more than 3,000 ordinary doses were
placed in the control of King. Undoubtedly doses may be varied to
suit different cases as determined by the judgment of a physician.
But the quantities named in the indictment are charged to have been
entrusted to a person known by the physician to be an addict
without restraint upon him in its administration or disposition by
anything more than his own weakened and perverted will. Such
so-called prescriptions could only result in the gratification of a
diseased appetite for these pernicious drugs or result in an
unlawful parting with them to others in violation of the act as
heretofore interpreted in this Court within the principles laid
down in the
Webb and
Jin Fuey Moy cases,
supra.
We hold that the acts charged in the indictment constituted an
offense within the terms and meaning of the act. The judgment of
the district court to the contrary should be reversed.
Reversed.
MR. JUSTICE HOLMES, dissenting.
If this case raised a question of pleading, I should go far in
agreeing to disregard technicalities that were deemed vital a
hundred or perhaps even fifty years ago. But we have nothing to do
with pleading as such, and as the Judge below held the indictment
bad, it can be sustained only upon a construction of the statute
different from that adopted below.
The indictment, for the very purpose of raising the issue that
divides the Court, alleges in terms that the drugs
Page 258 U. S. 290
were intended by the defendant to be used by King in divided
doses over a period of several days. The defendant was a licensed
physician, and his part in the sale was the giving of prescriptions
for the drugs. In view of the allegation that I have quoted and the
absence of any charge to the contrary, it must be assumed that he
gave them in the regular course of his practice and in good faith.
Whatever ground for scepticism we may find in the facts, we are
bound to accept the position knowingly and deliberately taken by
the pleader and evidently accepted by the Court below.
It seems to me impossible to construe the statute as tacitly
making such acts, however foolish, crimes, by saying that what is
in form a prescription and is given honestly in the course of a
doctor's practice, and therefore, so far as the words of the
statute go, is allowed in terms, is not within the words, is not a
prescription, and is not given in the course of practice if the
Court deems the doctor's faith in his patient manifestly
unwarranted. It seems to me wrong to construe the statute as
creating a crime in this way without a word of warning. Of course,
the facts alleged suggest an indictment in a different form, but
the government preferred to trust to a strained interpretation of
the law, rather than to the finding of a jury upon the facts. I
think that the judgment should be affirmed.
MR. JUSTICE McREYNOLDS and MR. JUSTICE BRANDEIS concur in this
opinion.