1. The mere fact that the quantity of morphine dispensed by a
registered physician by a prescription to a morphine addict without
a written order exceeds what would be required by the patient for a
single dose does not constitute a violation of the Anti-Narcotic
Act.
Linder v. United States, 268 U. S.
5. P.
271 U. S.
106.
2. An ambiguous statement in a charge in a criminal case which,
interpreted one way, would be erroneous, but which, considered with
the charge as a whole, probably was understood by the jury in a
harmless sense, is not a ground for reversal where the defendant
did not object and seek a correction in the trial court. P.
271 U. S.
107.
4 F.2d 1014 affirmed.
Certiorari to a judgment of the circuit court of appeals
affirming a conviction of the petitioner of violations of the
Anti-Narcotic Act.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was a prosecution under Harrison Anti-Narcotic Act, c. 1,
38 Stat. 785, as amended by c. 18, 40 Stat. 1130. The indictment
contained thirteen counts. The defendant was acquitted on seven and
convicted on six, and the conviction was affirmed by the circuit
court of appeals. 4 F.2d 1014. The case is here on writ of
certiorari.
Page 271 U. S. 105
In each of the six counts, the defendant was described as a
physician, registered as such under the Act and credited with
paying the special tax required of physicians, and was charged with
unlawfully dispensing, through his written prescription, a stated
quantity of morphine sulphate to a particular person in the absence
of a written order from the recipient on an authorized form and not
in the course of professional practice only, but to enable the
recipient to obtain, as actually was done, possession of that
quantity of the drug contrary to law. The prescriptions as set
forth were: to Annie Davis, an addict to the use of the drug for 21
years, 48 grains on August 2, 48 grains on August 9, and 40 grains
on August 13, all in 1923, and to Frank O'Hara, an addict for 18
years, 30 grains on August 18, 30 grains on August 24, and 30
grains on August 30, all in 1923.
On the trial, the government proved and the defendant admitted
that he was a physician, was registered under the Act, and had paid
the special tax required of a physician; that he issued the
prescriptions without written orders from the recipients on an
authorized form; that he intended the recipients should obtain the
during in the quantities specified from a local dealer; that they
did so obtain it under the prescriptions; that they had been coming
to the defendant for long periods, and he knew they were confirmed
addicts whose will had come to be subservient to their acquired
craving for the drug; that they were in a position after the
prescriptions were filled where they could administer the drug to
themselves according to their own inclinations, or dispose of it to
others, and that each prescription was for a quantity greatly in
excess of what would be appropriate for immediate
administration.
The disputed question was whether the defendant issued the
prescriptions in good faith, in the course of his professional
practice. On this point, the evidence was conflicting.
Page 271 U. S. 106
That for the government tended strongly to show that the
prescriptions were for quantities many times in excess of what,
according to any fair medical standard, reasonably could be put
into the possession of confirmed addicts, even when treating them
for the addiction or endeavoring to relieve them from suffering
incident to it, and that the prescriptions could only have been
issued to enable the recipients to indulge their acquired longing
for the drug and its effects. Much of that for the defendant tended
to show that he issued the prescriptions in good faith, in the
course of professionally treating the recipients for their
addiction and endeavoring to relieve them from its incidents. But
some of the evidence in his behalf was pronouncedly corroborative
of that for the government. Thus, the testimony of other physicians
whom he called as witnesses, while tending to approve his asserted
method of treatment, also tended to show that the prescriptions in
question were grossly excessive and unreasonable according to any
fair medical standard, and his personal testimony contained
contradictions and admissions tending materially to detract from
his claim of good faith. Among other things, his testimony showed
that he was both distributing and prescribing most unusual
quantities of the drug; that he purchased and distributed over
15,000 grains from May 1 to September 30, 1923, and that he issued
prescriptions on much the same scale during that period. There was
much testimony that his professional and private character were
good and widely respected.
In its charge to the jury, the court said that the determinative
question was whether the defendant issued the prescriptions in good
faith "as a physician to his patients in the course of his
professional practice only;" that, if they were issued in good
faith, "for the purpose of curing disease or relieving suffering,"
he should be acquitted, and that if, on the evidence, that question
was left in reasonable
Page 271 U. S. 107
doubt, he should be given the benefit of the doubt and
acquitted. There was more along this line, in the course of which
the court said that it was admissible for the defendant in his
professional practice to prescribe the drug either for "the curing
of morphinism" or for "the relief of suffering from morphinism" if
he did so in good faith, and that, in determining the question of
his good faith, the jury should consider the quantity prescribed --
whether it conformed to medical standards, and if it was in excess
of such standards, whether there was reason or occasion for the
excess. Thus far, the charge was in accord with what this Court
said in
Linder v. United States, 268 U. S.
5, where prior decisions were reviewed and
explained.
Further on in the charge, the court indicated that it was not
admissible for the defendant to issue prescriptions to a known
addict "for amounts of morphine for a great number of doses, more
than was sufficient for the necessity of any one particular
administration of it." Complaint is now made of this. It appears
ambiguous, and, if not taken with the rest of the charge, might be
regarded as meaning that it never is admissible for a physician, in
treating an addict, to give him a prescription for a greater
quantity than is reasonably appropriate for a single dose or
administration. So understood, the statement would be plainly in
conflict with what this Court said in the
Linder case. But
we think it could not well have been so understood in this
instance. It did not stand alone, but was to be taken in connection
with what preceded it and also with what followed. At the
conclusion of the charge, counsel for the defendant made no
objection and took no exception to it, but simply asked the court
to add the following, which was done:
"I am requested to say to you, gentlemen, that, in determining
whether or not the defendant, in prescribing morphine to his
patients, was honestly seeking to cure
Page 271 U. S. 108
them of the morphine habit, while applying his curative
remedies, it is not necessary for the jury to believe that
defendant's treatment would cure the morphine habit, but it is
sufficient if defendant honestly believed his remedy was a cure for
this disease."
"I instruct you that, if this is true, regardless of whether the
course of treatment given by this defendant is a cure, the question
is: was he honestly and in good faith in the course of his
professional practice and in an effort to cure disease issuing
these prescriptions?"
With that addition, the charge elicited no criticism or
objection from the defendant, although there was full opportunity
therefor. It evidently was regarded as consistent and satisfactory.
Besides, in view of what was said in other parts of the charge, we
are justified in assuming that, had the court's attention been
particularly drawn at the time to the part complained of now, it
would have been put in better form. Certainly, after permitting it
to pass as satisfactory then, the defendant is not now in a
position to object to it.
McDermott v. Severe,
202 U. S. 600,
202 U. S. 610;
United States v. U.S.
Fidelity Co., 236 U. S. 512,
236 U. S. 529;
Norfolk & Western Ry. Co. v. Earnest, 229 U.
S. 114,
229 U. S.
119-120.
This disposes of the only contention made by the defendant in
this Court.
Judgment affirmed.