On Petition for Rehearing.
In the petition for rehearing as to the fourteenth count, plaintiff in error, in addition to restating matters heretofore considered and as to which we find no occasion for further discussion, calls attention for the first time to a portion of article 10 of the Revised Regulations of the Treasury Department as of May 4, 1916, contained in Internal Revenue Regulations, No. 35, and reading as follows:
“A physician, dentist, or veterinary surgeon may not engage in the business of selling narcotic drugs unless he is a registered dealer, authorized by the state laws to engage in such business. Additional registration is not required, however, when narcotic drugs are sold to a patient upon whom a physician, dentist, or veterinary surgeon is in personal attendance.”
These sentences, however, are to be,construed in the light both of article 1 and of that part of article 10 immediately preceding the quoted sentences, and reading as follows:
“Under the exempting provisions of section 2 of the act, no written order is required for the ‘dispensing or distribution of any of the aforesaid drugs to a *338patient by a physician, dentist or veterinary surgeon registered under this act in the course of his professional practice only.’ A record, however, is required to be kept of all such drugs dispensed, distributed or administered in his office, and of all such drugs left with any person or patient to be taken in his absence, only such drugs as are personally administered by a physician, dentist or veterinary surgeon when away from his office are exempt from the records.”
So construed, the regulations clearly require a physician who acts as a dealer to register as such; but a sale to one in the course of his personal attendance upon him as physician does not necessitate registration as a dealer.
The sale here contemplated is a sale by him not as a dealer but as a physician; instead of “dispensing, distributing or administering” a dose of the narcotic as a part of his medical service, without a separate charge therefor, it may be that in some places physicians are accustomed to charge specifically therefor.. While this might well be deemed a dispensing, yet as it could be held to be sale, the regulations out of abundant caution provide that in such a case, doubtless because the physician is not then acting as a dealer, no additional registration is required.
In the instant case, however, the indictment charges and the evidence abundantly proves that, though the purchaser was registered as a patient, the sale was made to him by defendant acting as a dealer, and not as a physician' in personal attendance, administering or dispensing the drug as part of the professional service.
That the same form of stamp or receipt is issued by the department to all persons, reciting that the money is for “Special Tax on Manufacturer, Distributor, etc., of Opium, etc., under Act of December 17, 1914,” in no manner modifies the specific requirement under article I of the regulations, of double registration for one acting both as physician an'd as dealer.
Rehearing deniéd.