US/271/104.html
BOYD
v.
U.S.
271 U.S. 104 (1926)
No. 365.
Argued Dec. 1, 1925.
Decided April 19, 1926.
Mr.
Sam E. Whitaker, of Chattanooga, Tenn., for petitioner.
Mr.
Assistant Attorney General Donovan, for the United States.
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 chapter 18, 40 Stat. 1130 (Comp. St. 1918, Comp. St. Ann. Supp.
1919, 6287g et seq.). 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. [271 U.S. 104, 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 wad 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 con- [271 U.S. 104, 106] flicting. 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 rea- [271 U.S. 104, 107] sonable 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, 45 S. Ct. 446, 268 U.S. 5, 39 A. L. R.
229, 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
[271 U.S. 104, 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, 26 S. Ct. 709, 202 U.S. 600, 610; United States v. U. S.
Fidelity Co., 35 S. Ct. 298, 236 U.S. 512, 529; Norfolk & Western Ry. Co.
v. Earnest, 33 S. Ct. 654, 229 U.S. 114, 119, 120 S., Ann. Cas. 1914C, 172.
This
disposes of the only contention made by the defendant in this court.
Judgment
affirmed.