(dissenting).
The facts in this case, as established by the undisputed evidence and the verdict of the jury, are as follows:
Appellant was a practicing physician who had registered and paid the special tax, as required by 26 U.S.C.A. §§ 1383, 1384, when he began treating a man by the name of Christian, who had formerly been addicted to the use of narcotics. Christian had a chronic complaint, but could not be classed as a person having a bona fide need for narcotics and was not so regarded by other doctors. Appellant, almost immediately, began to supply his patient with morphine, not by prescription as is usually done by legitimate practitioners, except in emergencies and in bedside treatment, but by dispensing the drug himself, charging therefor about ten times the cost of the drug.
After supplying Christian for several years at a profit of two or three dollars per day, appellant was indicted, entered a plea of guilty, paid a fine, and surrendered his license to dispense and administer narcotics. Almost immediately thereafter, he took Christian a distance of about one hundred miles to see a doctor named Hargrove, whom appellant persuaded to agree to supply narcotics to Christian at the same rate of pay he had received, prescriptions to be written therefor in the names of patients whom Dr. Hargrove attended, and filled by the son of Dr. Hargrove, a druggist. Pursuant to this arrangement, Christian made many purchases from the Hargroves, each purchase being of ten, fifteen, or twenty grains of morphine at one dollar per grain, none of the drug being in or from the original stamped package, as required by 26 U.S.C.A. 1043 (a), and none of the prescriptions being for a legitimate medical use or bearing the name of the patient to whom the drug was sold, as required by 26 U.S.C.A. 1044 (c) (2). That these sales constituted violations of the Harrison Narcotic Act is too clear for discussion, and the verdict of the jury establishes the formation of a criminal conspiracy, in violation of 18 U.S.C.A. § 88.
There was no error in the admission of testimony relating to sales of morphine by appellant to Christian prior to the formation of the conspiracy. It showed that appellant had been furnishing narcotics to Christian until he lost the privilege of dealing in such drugs. It is not disputed that the transactions with the Efargroves occurred immediately thereafter. It was material to show the whole course of dealing between the parties. Moreover, it tended to refute the contention that appellant was actuated by humanitarian motives and had no financial interest in the transactions between Christian and the Hargroves Grayson v. U. S., 6 Cir., 272 F. 553, 558, Certiorari denied, 257 U.S. 637, 42 S.Ct. 49, 66 L.Ed. 409; Madden v. U. S., 9 Cir., 20 F.2d 289, 294, Certiorari denied Parente v. United States, 275 U.S. 554, 48 S.Ct. 116, 72 L.Ed. 423.
Error is assigned to the refusal of the court to require Dr. Hargrove to give a categorical answer to the question, “Doctor, did you at any time confederate or conspire with Dr. Lambert to bring about the sale or any other, sale to this man or anyone else?” The question was answered by the statement, “I did not consider it so”; but appellant insisted upon a yes or no answer, to which appellee objected. Since an answer in simple negative form could have had no more probative value than that actually given, the error, if any, was not prejudicial, and affirmance should follow under 28 U.S.C.A. § 391.
It must be conceded that the question was improper and that the ruling of the court was correct; but the majority finds that counsel for appellant may have been misled, and that, due to his obstinate insistence upon the question, an unpleasant scene was provoked which operated to the prejudice ,of appellant. Even if it be conceded that a reversal should be predicated upon the failure of the court adequately to protect appellant against the obstinacy or lack of erudition of his own counsel, the record in this case does not support the conclusion. The following is taken from the seventh and eighth special bills of exception preserved by appellant, rather than from the narrative of the testimony, because they present verbatim what appellant contends occurred, the elder Hargrove, one of the alleged conspirators, being on the witness stand: “The Court: The words, ‘conspire’ or ‘confederate,’ are susceptible of legal interpretation, Mr. Edwards, and what you are really asking him to do is to interpret the meaning of those words. Now go on with something else.”
This ruling was excepted to by counsel, who insisted upon making his record, and was permitted to ask substantially the same question twice. The court sustained objections thereto, and exceptions were duly *966taken and allowed. Upon the third repetition of the question, an objection being made, the court ruled: “The Court: You may ask him, Mr. Edwards, if he made any agreement with respect to these narcotics, but whether or not he was acting in violation of the law is -a question of law.”
Subsequently, when another witness (the younger Hargrove, also an alleged conspirator) was under cross-examination, the following occurred:
“By Mr. Edwards: Q. Did you and Dr. Lambert and your father have any conversation or conference or confer together about violating any law?
“Mr. Hardin: Now, Your Honor, I object to that. That is the same thing he went over with the other witness that Your Honor ruled out.
“The Court: I have ruled on that objection and sustained it, Mr. Edwards. I have told you that you may ask these witnesses if they had any agreement about the delivery or sale of narcotics, but whether or not it was a violation of the law is a matter of law that the witness cannot pass on. You may ask him about any agreement, if any agreement was arrived at with regard to the sale of narcotics, but he cannot express any opinion 'about wheth-. er they agreed to violate any law.
“By Mr. Edwards: Q. Did you have any agreement about the sale of narcotics to this man Christian ? A. The only agreement we had was that I was to let Mr. Christian have this morphine—
“Q. (interrupting) That was with your father, but did you all have an agreement together that you were to sell him morphine when and if he wanted it in violation of any law ?”
Thus it clearly appears that the court not only instructed counsel as to the proper procedure and the manner in which the line of inquiry might be pursued, but actually succeeded in getting him to ask the question properly. The answer being unsatisfactory, counsel quickly interrupted the witness and again put the question directly contrary to the ruling of the court. It should be evident from this that counsel would not permit the witness to answer a proper question, and repeatedly propounded improper ones. It appears that.counsel’s conduct, which later caused him to be fined, was subsequent to patient and painstaking explanation by the court, which counsel clearly understood.
There was no reversible error in the action of the court in dealing with an unruly attorney, nor can it be said that the appellant was an innocent bystander, since the jury found him guilty of a conspiracy on evidence which also might have justified a conviction on the substantive offenses charged in the indictment. The appellant was present, and presumably countenanced the methods employed to secure his acquittal. Early in the trial, his attorney began to argue with the court after rulings had been made against him. As the trial progressed, he went so far as to object to the attitude of the court as tending to preju-. dice him and his client before the jury. Then he became defiant and said he was going to talk as long as the interests of his client demanded. A fine of five dollars only provoked him to say that he would go to jail and rot there the rest of his life, but he was going to represent his client as he saw fit. In these circumstances, a reversal should not be predicated upon the presumption of prejudice resulting from the misconduct of counsel.
The testimony which the majority finds insufficient to sustain a conviction on the conspiracy count includes the uncontradicted testimony of a co-conspirator that the latter reluctantly agreed, after much persuasion by appellant, to commit, and did commit, a crime, viz., to supply narcotics to Christian.1 It is pointed out by the majority that appellant had conspired with Christian to purchase the narcotics. On the authority of U. S. v. Katz, (271 U.S. 354, 46 S.Ct. 513, 70 L.Ed. 986), it is urged that a buyer may not be charged with the seller where the sale is the offense denounced, and that, since appellant conspired with the buyer, he may not be convicted of conspiracy with the seller. In the Katz case, after holding that the purchaser of liquor could not be held with the seller for conspiracy to make the sale, the court said: “This embarrassment could be avoid*967ed in an indictment for a criminal conspiracy only if the buyer and seller were charged with conspiring to commit a substantive offense having an ingredient in addition to the sale, not requiring the agreement of two persons.for its completion.”
It is clear that what the Supreme Court holds is that the meeting of the minds necessary to complete the offense of sale may not be made the basis of a charge of conspiracy, but that, if the substantive offense be one not requiring the concurrence of both parties, a conspiracy may be charged. Here, appellant was not the purchaser. It was not his mind, but Christian’s, that necessarily met with the minds of the Hargroves to complete the sale. When the conspiracy was formed between appellant and the Hargroves, Christian was present, attesting his own assent, and the sale was completed when appellant persuaded his co-conspirators to make the sale. The effect of the finding of a conspiracy between appellant and Christian is no more than to find him guilty of two conspiracies, both of which might have been charged against him, it being unlawful to purchase as well as to sell such drugs. 26 U.S.C.A. § 1043. Cf. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314.
It is true that these facts made appellant guilty of the substantive offenses, and that the verdict of acquittal .on all the other counts is inconsistent with the verdict of guilty on the conspiracy count. The majority agrees that consistency in verdicts is not required, but points to the action of the court in instructing on Counts 2, 3, and 4, and the action of the jury in acquitting on Count 1, as evidence that judge and jury considered appellant no more than an aider and abettor of Christian, not of the Hargroves. As to the judge, the record shows that he instructed as to Counts 2, 3, and 4, because appellant was not present, or in close proximity, when the sales were made, and he did not think appellant could be an aider and abettor under the circumstances. He also stated: “Of course as to conspiracy the situation is entirely different, because the act of one, after the agreement is entered into, becomes the act of all. * * * ”
We have no way of knowing whether or not the jury took the view ascribed to them. In Dunn v. United States, (284 U. S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 80 A.L.R. 161), after establishing the rule that consistency in verdicts is not required, Mr. Justice Holmes quotes from Steckler v. U. S., 2 Cir., 7 F.2d 59, 60, as follows: “The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.”
When read as a whole, the instructions to the jury do not contain error. The trial judge appears to have modeled his definition of reasonable doubt upon the case of Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708; but even if technically defective, I am convinced that the part defining reasonable doubt was not prejudicial. It is certain that the attorney for appellant found no fault with it, requested no modification, took no exception, assigned no error, and did not mention it in his brief or oral argument.
I think the judgment of the district court should be affirmed.
In counseling this crime, appellant was a principal under 18 U.S.C.A. § 550, as follows: “§ 550. (Criminal Code, section 332.) ‘Principals’ defined. Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal. (R.S. §§ 5323, 5427; Mar. 4, 1909, c. 321, § 332, 35 Stat. 1152.)”