contains a provision not required by any treaty, a grave doubt arises whether such a statute is entitled to the supremacy claimed for treaties on the ground that it does in effect carry out existing treaty obligations on the general subject of both treaty and statute. While the opium registration act of December 17, 1914, may have a moral end, as well as revenue, in view, this court, influenced by the grave doubts of its constitutionality except as a revenue measure, construes it as such.

Every question of construction is unique, and an argument that might prevail in one case may be inadequate in another.

Only definite words will warrant the conclusion that Congress intended to strain its powers almost, if not quite, to the breaking point, to make a great proportion of citizens prima facie criminals by mere possession of an article. (United States v. Jin Fuey Moy, 241 U. S. 394, 1916.) See later case between same parties pending in United States Supreme Court.

Constitutionality.

Opium or coca leaves, their salts, derivatives, or preparations, being exclusively foreign products, it was within the power of Congress in the interest of the general welfare to exclude their importation entirely, or to so regulate the traffic in them that their importations may be traced, as was done by act December 17, 1914, and hence, to sustain the constitutionality of that act, it is not necessary to hold that it is designed to protect the revenues of the United States. (United States v. Charter, 227 Fed. 331, 1915.)

Harrison Antinarcotic Law, section 2, forbidding any person selling opium to another not presenting a written blank furnished by a revenue collector, is not invalid as a revenue provision, though its chief purpose may be to control distribution, by empowering physicians exclusively to distribute the drug only as a medicine, and thereby suppress consumption by addicts. (United States v. Rosenberg, 251 Fed. 963, 1918, and Hughes v. United States, 253 Fed. 543, 1918.)

The act is constitutional. (United States v. Denker et al. and Same v. Bernstein et al., 255 Fed. 339, 1918.)

The provisions of section 2 of the act have direct relation to the revenue provision of the act and are within the constitutional powers of Congress. (Foreman v. United States, 255 Fed. 621, 1918.)

The Harrison Antinarcotic Act is not unconstitutional. (United States v. Hoyt, 255 Fed. 927, 1917.)

Sections 1 and 2 of the act are constitutional. (United States v. Loewenthal, 257 Fed. 444, 1919.)

The administrative provisions of the act, section 1, relating to taxation and registration, are valid. (Stetson v. United States, 257 Fed. 689, 1919.)

Section 2 of the act is constitutional. (Thompson v. United States, 258 Fed. 196, 1919.)

The first sentence of section 2 of the act prohibits retail sales of morphine by druggists to persons who have no physician's prescription, who have no order blank therefor, and who can not obtain an order blank because not of the class to which such blanks are allowed to be issued under the act. This construction does not make unconstitutional the prohibition of such sale. (United States v. Doremus, 249 U. S. 86, and Webb et al. v. United States, 249 U. S. 96, 1919.)

While Congress may not exert authority which is wholly reserved to the States, the power conferred by the Constitution to levy excise taxes, uniform throughout the United States, is to be exercised at the discretion of Congress, and where the provisions of the law enacted have some reasonable relation to this power the fact that they may have been impelled by a motive, or may accomplish a purpose, other than the raising of revenue, can not invalidate them; nor can the fact that they affect the conduct of the business which is subject to regulation by the State police power. Held, that the provisions of section 2 have a reasonable relation to the enforcement of the tax provided by section 1 (which is clearly unobjectionable), and do not exceed the power of Congress. (U. S. v. Doremus, 249 U. S. 86, reversing 246 Fed. 958, 1919. Followed in Webb v. U. S., 249 U. S. 96, 19:9.)

Evidence

In prosecutions for violations of the act.

The court will take judicial notice of the fact that opium is not grown or produced in the United States. (United States v. Brown, 224 Fed. 135, 1915.) But see next case.

This court can not assume to know judicially that no opium is produced in this country. (United States v. Jin Fuey Moy, 241 U. S. 394, 1916, affirming 225 Fed. 1003.) See later case between same parties pending in United States Supreme Court.

Where the evidence abundantly supported more than one of the five counts charging the defendant with violating the act of December 17, 1914, and the sentence imposed was such as could have been imposed under section 9 of that act for a single offense, the judgment will not be reversed for errors affecting only one count. (Baldwin v. United States, 238 Fed. 793, 1917.)

In a prosecution under Harrison Antinarcotic Act, section 2, against a physician who sold large quantities of narcotics to habitual users of the drug, medical testimony as to recognized methods among physicians for treating persons addicted to the use of narcotic drugs was admissible, for the purpose of showing that the accused physician did not come within the exception as to physicians dispensing drugs in the course of their practice, for, while the act is in the guise of a revenue measure, it was intended to accomplish a moral purpose.

In a prosecution against a physician for violating Harrison Antinarcotic Act, section 2, by dispensing narcotics to habitual users of

the drug, the exclusion of a letter from the Commissioner of Internal Revenue in response to a query by defendant physician as to dispensing of narcotics held proper.

Evidence that defendant, a physician, dispensed the drug to addicts and to persons other than those specified in the indictment is admissible to show his intent. (Thompson v. United States, 258 Fed. 196, 1919.)

The courts take judicial notice of the facts of chemistry contained in the United States Pharmacopoeia.

In prosecution of a physician for violating the Harrison Narcotic Act order forms used by defendant to procure morphine from a druggist other than the one with whom he was charged with having conspired and with having made a sale were admissible on the issue of intent to furnish the drug to an addict, and not to aid or cure a patient in his practice as a physician,

In prosecution of physicians for violating the Harrison Narcotic Act the testimony of qualified medical experts that the prescribing of the drug under stated quantities and circumstances would not be in the course of a physician's regular practice was admissible on the issue whether the drug was dispensed in the legitimate course of defendant's practice as physicians. (Melanson v. United States and Ellsworth v. Same, 256 Fed. 783, 1919.)

Indictments--In prosecutions for violations of the act.

Indictments charging that defendants knowingly, unlawfully, and feloniously had in their possession and under their control smoking opium, not having theretofore registered with the collector of internal revenue, as required by act December 17, 1914, and not having theretofore paid the special tax provided for thereby, but not alleging that defendants were in any of the classes thereby required to register and pay such tax, were fatally defective in substance, and too uncertain to be sustained, since, when an offense can be committed by only certain classes or persons, the indictment must allege that accused is in one of those classes. (United States v. Woods (and five like cases) 224 Fed. 278, 1915.)

In view of sections 1, 2, and 8 of the act an indictment charging defendant with conspiring with M. to have a dram of opium in the possession and under the control of M., and as the overt act charging that defendant issued to M. a prescription therefor, in bad faith, knowing it was not given for medicinal purposes, but for supplying one addicted to the use of opium, is insufficient; the unlawful thing charged consisting in having the drug in the possession and under the control of M., the word "person" in section 8 referring only to those required by the act to register and pay the tax, and it not being alleged M. had the drug in his possession for any of the purposes for which he would have to register and pay the tax. (United

States v. Jin Fuey Moy, 225 Fed. 1003, 1915, affirmed in 241 U. S. 394, 1916.)

Statutes creating and defining crimes can not be extended by implication or intendment, and an indictment under such a statute must allege directly and with certainty every element essential to bring the offense within its terms.

Where a statute defining an offense contains an exception in the clause creating the offense, which is so incorporated with the language defining it that the offense can not be accurately and clearly described, if the exception is omitted, the indictment must allege enough to show that the accused is not within the exception; but, if the language creating the offense is so completely separable from the exception that the essential ingredients of the offense may be accurately and clearly defined without any reference to the exception, it need not be negatived therein, but it is a matter of defense.

An indictment under Harrison Antinarcotic Act December 17, 1914, section 8 (38 Stat. 789), charging that defendant not having registered and paid the special tax required by section 1 of the act, had in his possession a quantity of morphine, is insufficient to charge an offense where it is not alleged that he was engaged in a business which required him to register and pay such special tax.

Exemptions from liability for offenses created by acts of Congress are matters of defense; but matters excepted from the granting clause of the act are not within the terms of the act, and such matters must be negatived in the indictment or complaint. (United States v. Carney, 228 Fed. 163, 1915.)

Under sections 1 and 8 of the act an indictment charged that in violation of section 1 defendant unlawfully sold, dispensed, and distributed morphine sulphate tablets as a dealer to a consumer. Held, that this was equivalent to charging that he had them in his possession, and hence an offense was charged; but, as the offenses were charged as violations of section 1, proof of registration and the payment of the special tax would be a complete defense. (United States v. Curtis, 229 Fed. 288, 1916.)

Indictment for such offense must allege it was committed within the essential period, or it fails to allege an offense.

Under Revised Statutes, section 1025, excusing defects of form, indictment charging that defendant violated the antidrug act by giving an order for opium, and, after acceptance, failing to preserve a duplicate so as to be readily accessible, was sufficient, though alleging the date of the offense no more definitely than some unknown date within the essential two-year period, which did not tend to defendant's prejudice.

To the requirement that an indictment must allege a day certain, there are two fairly recognized exceptions: Misdemeanors, and offenses of omission, rather than of commission.

Violation of the antidrug act by giving an order for opium, and, after acceptance, failing to preserve a duplicate so as to be readily accessible, is an offense in nature but a misdemeanor, failure to obey an administrative regulation, a mere statutory infraction, and not a true crime, though made a felony by Penal Code (act Mar. 4, 1909) section 335 (35 Stat. 1152).

An indictment charging violations of the antidrug act, in that defendant gave an order for opium and failed to preserve a duplicate after acceptance so as to be readily accessible, need not allege the offense as of a day certain; the charge being an omission to perform a statutory duty. (United States v. Gaag, 237 Fed. 728, 1916.)

Indictment under Harrison Narcotic Act, sections 1, 2, charging accused with dealing in forbidden drugs without having registered and paid the special tax, Held, not bad for duplicity, or because vague, indefinite, and uncertain. (United States v. Loewenthal, 257 Fed. 444, 1919.)

An indictment for violation of the Harrison Narcotic Drug Act which described defendant as not being then and there an officer of the Federal Government or State government engaged in making purchases of the specified drug, and not being any other officer entitled to make such purchases, Held, not insufficient, as failing to negative all statutory exceptions from the operation of the statute by section 1.

An indictment is sufficiently certain if it fairly informs accused of the crime intended to be charged, so as to enable him to prepare his defense, and so as to make the judgment a complete defense to a second prosecution.

Count of indictment for violation of the Harrison Narcotic Drug Act, Held, not bad, as not negativing the exception of section 6, that the provisions of the act shall not be construed to apply to the dispensing of remedies not containing more than a quarter of a grain of morphine, etc. (Stetson v. United States, 257 Fed. 689, 1919.)

An exception in the enacting clause of a penal statute must be negatived by the indictment, but an exception in a later section need not be negatived.

Description of a statutory offense in the language of the statute is sufficient, provided the language used according to its natural import fully describes the offense.

Indictment for violation of the Harrison Narcotic Drug Act stating the charge substantially, though not literally, in the language of section 1 of the act, fully defining the offense, and also alleging the sale of morphine in certain so-called morphine checks and other forms, Held, sufficient. (Stetson v. United States, 257 Fed. 689,