An indictment under section 2 charged that accused gave an order to a certain person for one of such drugs, and that he failed to preserve a duplicate of the order for two years, and also failed to keep a record of the amount of the drug by him dispensed and distributed. Held, that this was not an attempt to plead in the alternative, nor did it plead two violations of the law, as a physician is excused from failing to keep a duplicate of the order only when he keeps a record of his dispensing, and the indictment alleged the absence of the exception, which makes the provision for the retention of the duplicate of the order unnecessary. (United States v. Charter, 227 Fed. 331, 1915.)

An indictment charging in substance that defendant did "dispense, distribute, and sell" a derivative of opium to persons named without a written order on the prescribed form and not in the course of his professional practice as a physician, Held, to charge an offense under Harrison Narcotic Act, Dec. 17, 1914, section 2. (Foreman v. United States, 255 Fed. 621, 1918.)

Though section 2 declares that nothing in the section shall apply to registered physicians who distribute narcotics in their professional practice, Held, that an indictment, though averring that defendant was a registered physician, charged with a violation of section 2, in that he sold and dispensed heroin not in his professional practice, and in that the sale was not made in pursuance of a written order on a blank issued by the Commissioner of Internal Revenue.

An indictment charging a violation of section 2 in that defendant sold and dispensed heroin, not on a written order on a blank issued by the Commissioner of Internal Revenue, Held, not uncertain, ambiguous, and duplicitous, though it was averred that the defendant was a registered physician. (United States v. Hoyt, 255 Fed. 927, 1917.)

An indictment charging violation of the Harrison Narcotic Act which averred that defendant at the time of the offense knew that cocaine was a derivative of coca leaves, and that morphine and heroin were salts and derivatives of opium, sufficiently averred by implication the fact that cocaine was a derivative of such leaves, and that morphine and heroin are salts or derivatives of opium.

In view of section 1025, Revised Statutes, imperfections in indictment for violating the Harrison Narcotic Act in that it did not aver that cocaine is a derivative of coca leaves, and that morphine or heroin are salts or derivatives of opium, Held, harmless imperfections, carrying no consequences.

Under section 8 indictments charging violation of the act were not defective, because not averring facts showing defendants did not come within any of the exceptions of the act. (Melanson. United States and Ellsworth v. Same, 256 Fed. 783, 1919.)

Under section 1025, Revised Statutes, providing that defects of form, not prejudicing defendant, shall not invalidate indictments, and Harrison Narcotic Act, section 8, relative to negativing exceptions in an indictment, an indictment under sections 1 and 2 of the Harrison Act need not negative exceptions in those sections. (United States v. Lowenthal, 257 Fed. 444, 1919.)

Powers of Congress.

Congress may prohibit the importation of opium and regulate its relation to interstate commerce, as is done by act of December 17, 1914, providing for the registration with collectors of internal revenue of dealers in opium, imposing a tax on dealers, and making it unlawful for any person who has not registered and paid the tax to have in his possession any opium or derivative thereof, and providing that such possession shall be presumptive evidence of a violation of the act. (United States v. Brown, 224 Fed. 135, 1915.)

Questions for the jury-Prosecutions for violations of the act.

In prosecutions of physicians for having conspired to violate the Harrison Narcotic Act and having made sales illegally, question whether or not each defendant had conspired with a druggist, a codefendant, to dispense the drug in the guise of prescriptions to patients but really to addicts for the gratification of their appetite, and not for their cure, Held, for the jury under the evidence.

In prosecution of physicians for sale of drugs in violation of Harrison Narcotic Act whether dispensing of drug in each case was a dispensing of it by a physician to a patient, in which case no order form was required, or whether the form of prescription was used by defendants as an evasion of the law, and not in good faith, in which case the dispensing would be a sale, and an order form necessary to bring it within the law, Held, for the jury.

In prosecution of physicians for having violated the Harrison Narcotic Act whether two persons were consumers of the drug and not patients of defendants, and whether defendants and the druggist on whom they issued prescriptions, their codefendant, knew the true character in which such persons sought to procure the drugs, Held, for the jury. (Melanson v. United States and Ellsworth v. Same, 256 Fed. 783, 1919.)

In prosecution of physicians for having violated and conspired to violate the Harrison Narcotic Act the trial court in his general charge properly submitted an issue as to the good faith of defendants in issuing their prescriptions to supposed patients, since the defendants could only protect themselves if the prescriptions were issued legitimately in their practice. (Id.)

SECTION I-REGISTRATION.

As taxes can be imposed and statutory offenses created only by direct, clear, and apt language, the act does not impose the duty of registration and the payment of taxes upon mere consumers of the drugs, and only makes unlawful possession of the drugs by persons required to register and pay the tax, who have not done so. States v. Woods, 224 Fed. 278, 1915.)

(United

For indictments under this section, see heading of "Indictments."

SECTION II-ORDERS.

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. Every person who shall accept any such order, and in pursuance thereof shall sell, barter, exchange, or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such a way as to be readily accessible to inspection by any officer, agent, or employee of the Treasury Department duly authorized for that purpose, and the State, Territorial, District, municipal, and insular officials named in section five of this act. Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs shall, at or before the time of giving such order, make or cause to be made a duplicate thereof on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue, and in case of the acceptance of such order, shall preserve such duplicate for said period of two years in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned. 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; and such record shall be kept for a period of two years from the date of dispensing or distributing such drugs, subject to inspection, as provided in this act.

(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: Provided, however. That such prescription shall be dated as of the day on which signed and shall be signed by the physician, dentist, or veterinary surgeon who shall have issued the same: And provided urther, That such dealer shall preserve such prescription for a period of two years from the day on which such prescription is filled in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned.

(c) To the sale, exportation, shipment, or delivery of any of the aforesaid drugs by any person within the United States or any Territory or the District of Columbia or any of the insular possessions of the United States to any person in any foreign country, regulating their entry in accordance with such regulations for importation thereof into such foreign country as are prescribed by said country, such regulations to be promulgated from time to time by the Secretary of State of the United States.

(d) To the sale, barter, exchange, or giving away of any of the aforesaid drugs to any officer of the United States Government or of any State, Territorial, District. county, or municipal or insular government lawfully engaged in making purchases thereof for the various departments of the Army and Navy, the Public Health Service. and for Government, State, Territorial, District, county, or municipal or insular hospitals or prisons.

The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall cause suitable forms to be prepared for the purposes above mentioned, and shall cause the same to be distributed to collectors of internal revenue for sale by them to those persons who shall have registered and paid the special tax as required by section one of this act in their districts, respectively; and no collector shall sell any of such forms to any persons other than a person who has registered and paid the special tax as required by section one of this act in his district. The price at which such forms shall be sold by said collectors shall be fixed by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, but shall not exceed the sum of $1 per hundred. Every collector shall keep an account of the number of such forms sold by him, the names of the purchasers, and the number of such forms sold to each of such purchasers. Whenever any collector shall sell any of such forms, he shall cause the name of the purchaser thereof to be plainly written or stamped thereon before delivering the same; and no person other than such purchaser shall use any of said forms bearing the name of such purchaser for the purpose of procuring any of the aforesaid, drugs, or furnish any of the forms bearing the name of such purchaser to any person with intent thereby to procure the shipment or delivery of any of the aforesaid drugs. It shall be unlawful for any person to obtain by means of said order forms any of the aforesaid drugs for any purpose other than the use, sale, or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession.

The provisions of this act shall apply to the United States, the District of Columbia, the Territory of Alaska, the Territory of Hawaii, the insular possessions of the United States, and the Canal Zone. In Porto Rico and the Philippine Islands the administration of this act, the collection of the said special tax, and the issuance of the order forms specified in section two shall be performed by the appropriate internal-revenue officer of those governments, and all revenues collected hereunder in Porto Rico and the Philippine Islands shall accrue intact to the general governments thereof, respectively. The courts of first instance in the Philippine Islands shall possess and exercise jurisdiction in all cases arising under this act in said islands. The President is authorized and directed to issue such Executive orders as will carry into effect in the Canal Zone the intent and purpose of this act by providing for the registration and the imposition of a special tax upon all persons in the Canal Zone who produce, import, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations.

Section 8 has no relation to the failure of a registered physician to keep a duplicate of an order given by him for the prescribed drugs, or a record of the amount of any such drugs dispensed and distributed by him as required by section 2. (United States v. Charter, 227 Fed. 331, 1915.)

(a) Under the provisions of section 2 a physician is not prohibited from dispensing or distributing in the course of his professional practice and without a written order a narcotic to a patient employing him because of the fact that he does not personally attend such patient, but that in such case he is required to keep the prescribed record. (Tucker v. Williamson, 229 Fed. 201, 1915.)

(a) Under General Code, Ohio, section 1286, a person who examines patients, diagnoses their diseases, and then prescribes and sells his own proprietary remedies is engaged in the practice of medicine, although his ostensible and apparent motive may be the sale of his medicines, and he is subject to the laws of the State regulating such practice. (a) While the Harrison Narcotic Act of December 17, 1914, permits a physician in the course of his professional practice to dispense and distribute the mentioned narcotics to a patient by whom he is employed to prescribe, without being subject to the prescribed regulations, although he does not personally attend such patient, the act must be construed with reference to the known usages and modes of practice in the profession, in which the prescribing for patients without personal examination is the rare exception and not the rule; and under the provisions of section 1, requiring the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury to "make all needful rules and regulations for carrying the provisions of this act into effect," the commissioner has authority to prescribe what shall constitute "personal attendance" and "professional practice" by a physician within the meaning of the act, and a regulation which denied the right of registration and exemption to one who, although a licensed physician, does not see most of his patients, who bases most of his prescriptions on their written statements sent to him through the mails, and who prescribes the same remedy for all alike, is within the power conferred and valid. (Tucker v. Williamson, 229 Fed. 201, 1915.)

(a) A physician who issues a prescription for an unusually large amount of the drugs, which prescription shows on its face that the quantity prescribed is unreasonable and unusual, or a dealer who fills such a prescription or order issued by a physician, is guilty of an offense, unless the prescription indicates the necessity for such an unusual quantity. (United States v. Curtis, 229 Fed. 228, 1916.)

(a) It is an offense for a registered physician to sell narcotics. (Thompson v. United States, 258 Fed. 196, 1919.)

(b) The offense of giving an order for opium and failing to preservo a duplicate thereof in such a way as to be readily accessible, is committed when ready accessibility first fails after the order's acceptance, and is capable of continuity. (United States v. Gaag, 237 Fed. 728, 1916.)

(b) If a practicing and registered physician issues an order for morphine to an habitual user thereof, the order not being issued by him in the course of professional treatment in the attempted cure of the habit, but for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use, such order is not a physician's prescription under exception (b) of section 2 of the act. Webb et al. v. United States. 249 U. S. 96, 1919.