PENDLETON v. UNITED STATES, 290 F. 388

ROSE, Circuit Judge. The plaintiff in error was defendant below and will be so styled here. He was tried upon an indictment containing three counts. He was acquitted upon the two which charged illegal sale of narcotic drugs. The one upon which he was convicted in substance alleged that, while he was a practicing physician and a person required to register under the Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q), he had in his possession 2.31 grains of morphine, although he had never registered. Quite clearly, this count charged no offense.

It did not attempt to set up any violation of sections 1006 et seq. of the Revenue Act of February 24, 1919, 40 Stat. 1130 (Comp. St. Ann. Supp. 1919, § 6287g). It was obviously drawn under the original Anti-Narcotic Act (38 Stat. 785), which the Supreme Court years ago held did not penalize the mere possession of narcotics. U. S. v. Jin Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854. The count gains no added' strength from the allegation that the defendant was a practicing physician. As such, he was not required to register unless he dispensed narcotics.

There is nothing in the record to show that he did. It follows that the judgment below must be reversed.