Opinion
No. 4245.
April 6, 1925.
In Error to the District Court of the United States for the Eastern District of Tennessee; Xenophon Hicks, Judge. Certiorari granted 45 S. Ct. 515, 69 L. Ed. ___.
M.N. Whitaker, of Chattanooga, Tenn. (Whitaker Foust, of Chattanooga, Tenn., on the brief), for plaintiff in error.
George C. Taylor, U.S. Atty., of Knoxville, Tenn., for the United States.
Before DENISON and MOORMAN, Circuit Judges, and WESTENHAVER, District Judge.
This writ of error is prosecuted to reverse conviction and sentence for a violation of Harrison Narcotic Act. Plaintiff in error is a registered physician. The trial below was conducted on the theory that his dispensation of morphine sulphate was in good-faith efforts to cure addicts. He was found guilty and sentenced upon five counts involving five separate sales, the total sentence, however, being less than might have been imposed upon any one count. No error was properly preserved and assigned for review except failure to direct a verdict of not guilty at the conclusion of all the testimony. The verdict is amply supported by testimony, even upon the theory of the defense, so that it is unnecessary, in order to support the judgment, to resort to the authority of United States v. Behrman, 258 U.S. 280, 42 S. Ct. 303, 66 L. Ed. 619; Hobart v. United States (6 C.C.A.) 299 F. 784; Simmons v. United States (6 C.C.A.) 300 F. 321. If that part of the charge now criticized had been excepted to, and were now properly before us for review, it would be found in accordance with the doctrine of these cases. See also Webb v. United States, 249 U.S. 96, 39 S. Ct. 217, 63 L. Ed. 497; Jin Fuey Moy v. United States, 254 U.S. 189, 41 S. Ct. 98, 65 L. Ed. 214. These are the only criticisms made of the proceedings in the trial court. The judgment is affirmed, and the mandate will issue forthwith.