Petition for Writ of Certiorari — Manning v. United States

FILE COPY SEP 2 1947

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SUPREME COURT OF THE UNITED STATES.

DONALD R. MANNING,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Circuit Court of Appeals,

Fifth Circuit,

and

BRIEF AND ARGUMENT IN SUPPORT THEREOF.

\ G. ERNEST JONES,

Birmingham, Alabama,

Counsel for Petitioner.

RODERICK BEDDOW,

ROBERT W. GWIN,

Birmingham, Alabama,

Of Counsel for Petitioner.

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INDEX.

Page

Petition for writ of certiorari...................... 1-13

PE ss Sain cn wanda sast.a cade ccbsnneliioes 1

NE GE GINS os cvs, Sacked hoe os Cok caake ccs 3

UN 5 ba 48 Chae GaOAR Ka Re ke bcknscate 7

SE III - wa senha s x404 ouge seed cndeeae 8

Reasons relied on for obtaining the writ........... 9

Re ee LT ere ete LOR CCRT ET OR TTT COP 1l

Pee BI ie ies dwt evens eesssiwaxesesevibciad 12

Brief and argument in support of petition........... 15-35

Point I. A probationer may not have his probation

revoked and be sentenced until he has been given

notice of the specific charge and an opportunity

to be heard in his defense...................... 15

Point I. There being no federal law regulating the

practice of medicine in a state, the statute of the

state and decisions of the state courts of last re-

sort are binding upon the federal courts in any

proceeding instituted therein................... 19

Point III. The good faith of a defendant in a prose-

cution for making use of the United States mails

in furtherance of a scheme to defraud is a com-

No hc Cok iC be Naa tas cawcku cn ance 24

Point IV. An order admitting a defendant to proba-

tion may not be revoked arbitrarily by the judge,

the probationer being entitled to the opportunity

of a fair hearing upon specific charges with a fair

ES Oe MD a Monae dciakn cds... 27

Conclusion

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Cases Cited.

Burns v. U. S., 287 U. S. 216, 53 Sup. Ct. 154......... 9,10

Collins v. Texas, 223 U. S. 288, 32 Sup. Ct. 286........ 19

Durland v. U. S., 161 U. S. 306, 16 Sup. Ct. 508, 40 L.

BR SE cuknnp Uisnbwcp cceccabaes tse eseuseet 10, 24, 25

Escoe v. Zerbst, 55 Sup. Ct. 717..............-. 9, 10, 15, 27

Geld wv. T..6., BB Fed. (Bd) 2G. . 0000 cnc cesnses 8, 10, 25

Harper v. State, 102 So. 55.......... eee eee eee 8, 9, 20

Hollandsworth v. U. S., 34 Fed. (2d) 423... .9, 10, 15, 19, 27

MeVicar v. State Board of Law Examiners et al., 6

Bs A Ms aan cok Sh uh hel ewsehenacicacdkuens 19, 20

Beda v. U. &, 1738 Fed. 013 (0. C. A.)........0..5:, 24

Sandals v. U. S., 213 Fed. 569 (C. C. A.)............ 25

Watson v. Maryland, 218 U. S. 173, 30 Sup. Ct. 644... 19

West v. U. S., 68 Fed. (2d) 96............... 8, 10, 25, 34

Statutes Cited.

Alabama Code of 1940, Sec. 262, Title 46............ 8

iG om ee fe], Er 7

ee a ts ec can cease 19

SUPREME COURT OF THE UNITED STATES.

DONALD R. MANNING,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR WRIT OF CERTIORARI

To the United States Circuit Court of Appeals,

Fifth Circuit.

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States of

America:

Your petitioner, Donald R. Manning, respectfully shows:

1. On April 3, 1945, an information containing eight

counts, each count charging a violation of the Federal Pure

Food and Drug Act—21 U. S. C. 352; 21 U.S. C. 331, 321—

(R. pp. 1-24) was filed in open court in the District Court

of the United States for the Southern Division of the

Northern District of Alabama. Petitioner was duly ar-

raigned, plead guilty as charged (R. p. 54), and was sen-

tenced to imprisonment for a period of thirty days under

count one of the information (R. p. 56) and placed on

probation for a period of three years under counts one,

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two, three, four, five, six and seven of the information

(R. p. 56) on the 18th day of October, 1945. The record

of judgment does not show that the petitioner was in-

formed of any conditions of probation by the court (R. p.

56). On November 15, 1946, petitioner was called before

Hon. Seybourn H. Lynne, a Judge of said Court, to an-

swer a charge of violating the terms of his probation.

Though no complaint appears in the record as of that date

(R. pp. 57-59), the petitioner made a motion to require the

government to file a formal complaint, which said motion

was, by the court, denied (R. pp. 58-59) and hearing con-

tinued until November 22, 1946 and petitioner admitted to

bail fixed at $500.00 (R. pp. 63-70). The government,

through its District Attorney, did informally announce in

open court that petitioner was charged with violating the

terms of his probation by practicing medicine without a

license in Bessemer during the period of May 1, 1946 to

August 31, 1946 (R. p. 69), and also by using the mails

to defraud one Charles Edel (R. p. 69) and using the mails

to defraud one M. T. Hanson (R. p. 70) and using the mails

to defraud one Olin Harrold (R. p. 70). Before the Hon.

Clarence Mullins, a Judge of said court, on November 22,

1946, petitioner again moved the court for a filing of a

complaint and for a more particular statement of the type

of violation so that he would know definitely how to act

(R. p. 71), which motion was, by the court, overruled. The

court expressed itself as being of the opinion that peti-

tioner was not even entitled to a formal trial (R. p. 71).

Petitioner then moved for a more particular specification

of the acts or conduct on the part of this petitioner and

informed the court that in order to obtain information

with regard to the matters which petitioner was called

upon to defend against, counsel for petitioner did under-

take to obtain a list of the witnesses summoned by the

government against the petitioner from the Clerk’s office,

which was refused, and stated to the court that petitioner

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was not informed as to whom the witnesses against him t

might be, nor with regard to the particular acts of con-

duct which said witnesses would testify against him and

again moved for a more particular specification of the

acts of conduct charged against him, which motion the

court overruled (R. p. 73). After hearing the testimony

admitted in evidence the court proceeded to adjudge the

petitioner guilty of having violated the terms of his pro-

bation and sentenced the petition on counts two, three, four,

five, six, seven and eight to pay a fine of $750.00 to stand

committed, and committed him to the custody of the At-

torney General of the United States for a period of one

year (R. pp. 61-62). The probation officer’s statement as

to the viclation of conditions of probation appears in the

record at pages 262-264. A vague and indefinite complaint

charging violation of the terms of probation appears to

have been filed November 13, 1946, but does not appear

to have been served on petitioner (R. 261-262). Notice

of appeal was filed November 26, 1946 (R. 257-258). Pe-

titioner was admitted to bail in the sum of $1500.00, which

he made (R. 258-259). This appeal was argued and sub-

mitted to the Circuit Court of Appeals for the Fifth Cir-

cuit and a judgment affirming the judgment of the court

below was rendered on May 28, 1947 and an opinion

rendered which is reported in 161 Federal Reporter (2d),

p. 827 (R. pp. 273-278). Application for rehearing was

duly filed within the time allowed by the Cireuit Court of

Appeals (R. pp. 281-282) and was, by the Circuit Court

of Appeals, denied on August 2, 1947 (R. p. 283).

Se PRIETO CIEE

2. Statement of Facts. Donald R. Manning was engaged

in business in Bessemer, Alabama, under the name of

“Manning Herb House.’’ The firm name is printed on his

stationery (R. p. 97) and he had been engaged in such

business since 1941 at Bessemer, Alabama (R. p. 251). He

employed a registered pharmacist to compound the var-

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ious medicines which he sold, whose name was J. H. Me-

Kelvey (R. pp. 207-229). Correspondence between him and

his customers was addressed by his customers to ‘‘ Manning

‘Herb House’? and was answered on stationery carrying

this firm’s name.

The government did not contend that the drugs consti-

tuting the ingredients of each of the proprietary medicines

involved in this hearing on probation did not have bene-

ficial properties, nor did the government contend that they

did not have economical value comparable to that of other

drug preparations sold in regular drug stores under their

proprietary trade names without doctors’ prescriptions.

Many similar proprietary drug compounds were intro-

duced in evidence by the petitioner and he sought to show

that they were sold at a price comparative to the prices

for which he sold his drugs and contained the same chem-

ical ingredients and had the same therapeutic value. The

government then disclaimed any intent to show that the

drugs sold by petitioner did not have commercial value

(R. pp. 225-226) nor that the value and commercial price

of his drugs constituted a badge of fraud (R. pp. 225-226).

It was undisputed that petitioner sold his preparations

under a guarantee to refund money to the customer if the

customer was not satisfied and that in every instance where

dissatisfaction was expressed by a customer he did refund

the money and that each package of merchandise which

went out of his place of business carried a printed state-

ment of this guarantee in the package (R. pp. 187-188).

There was 110 evidence that he had shipped any goods

in interstate commerce since his conviction on the orig-

inal information and his testimony that he had shipped

no goods in interstate commerce was without dispute.

The probation officer, Mr. Jordan, was present in the

court throughout the hearing and petitioner’s testimony

that he had conducted his business, since the day he had

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been put on probation, in strict accordance with the direc-

tions given him by the probation officer, Mr. Jordan, was

not disputed. His testimony that he had kept the proba-

tion officer fully informed and that the probation officer

had visited his place regularly and had observed his man-

ner of doing business and had read the copies of letters

which he had sent to his customers, was all without dispute

on the part of the probation officer. His testimony to the

effect that he frequently requested the probation officer to

advise with him regarding the practices of his business,

informing the probation officer fully with regard to these

practices, was without dispute.

There was no testimony to support charge 2 of the pro-

bation officer’s statement of violations (R. p. 263) charging

this petitioner with using the mails to defraud one Charles

Edel of Box 117, Cherokee, Alabama. There was testimony

that a pure food and drug administration agent from Wash-

ington, D. C., concocted a letter to be used in entrapping

this petitioner, signing the same ‘‘M. T. Hanson, Repton,

Alabama,’’ and forwarded the same to the postmaster at

Repton, Alabama, to be mailed to the petitioner and that

petitioner answered this letter, making a shipment of medi-

cines which he recommended for the ailments which the

said ‘‘Hanson’’ represented himself to suffer and that this

package of medicines contained the guarantee to refund

the money if not satisfactory. The letter sent by peti-

tioner to the said ‘‘Hanson’’ was written upon stationery

bearing the headline ‘‘Manning Herb House”’ and was in-

tercepted by the postmaster at Repton, Alabama and sent

to the Pure Food and Drug Agent in Washington, D. C.

There was no such person as ‘‘M. T. Hanson.’’ This was

a fictitious name signed for the sole purpose of entrapping

petitioner. This constituted the government’s evidence in

proof of charge 3 contained in the probation officer’s state-

ment as to violations (R. p. 264).

ong TLE RCO:

The substance of the evidence with regard to charge 4

contained in the probation officer’s statement of violations

(R. p. 264) is the same as that in support of charge 3.

The evidence with regard to charge 1 contained in the

probation officer’s statement as to violations (R. 263),

charging this petitioner with practicing medicine without

license during the period of May 1, 1946, to August 31,

1946, consisted of evidence that the petitioner, at his place

of business, operated a number of bath cabinets and had

attendants to wait upon his customers who desired baths

and used a stethoscope to determine whether or not the

condition of a person’s heart would permit such person

safely to take the hot baths. It was without dispute that

such instruments are used by all such bathhouses, and,

further, that he sold his proprietary remedies.

There was also evidence that in writing his letter in

reply to Hanson and Harrold he expressed his opinion as

to the cause of their physical ailments and it is chiefly

upon these letters to Hanson and Harrold that the govern-

ment depended to make out its case that petitioner was

practicing medicine without license. The letterhead upon

which this letter was written clearly disclosed that the

writer made no claim to be a physician.

The government made much of the fact that petitioner

had a big sign at his place of business which read: ‘‘D. R.

Manning Herb House’’ and had such signs on his windows

and that in one of these signs the period after the initial

letter ‘‘D’’ was omitted. Petitioner stated that this period

had been worn off in the course of time by washing the

window. The government contended that these signs were

intended to deceive the public into believing that petitioner

was a doctor of medicines.

There was evidence, without dispute, by men experienced

in retail drug merchandising, that it was common for drug-

—

gists to hear people describe their physical symptoms and

then te recommend proprietary drugs to them as remedies

for their diseases.

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There was also introduced in evidence, by the petitioner,

a number of packages of drugs with the literature con-

tained in the package recommending these drugs for physi-

cal ailments, which drugs were purchased from reputable

retail drug stores in Birmingham, Alabama.

There was also introduced in evidence various adver-

tisements clipped from daily issues of newspapers pub-

lished in Birmingham, advertising various and sundry

proprietary medicines and recommending such medicines

for particular diseases.

There was no charge contained in the complaint against

this petitioner, nor contained in the probation officer’s

statement as to violations of conditions of probation, that

this petitioner had violated the condition of his probation

with reference to dishonesty. It was admitted in the tes-

timony that petitioner gave commercial value for the

money received equal to that given by other persons en-

gaged in the sale of proprietary medicines, and it was ad-

mitted in evidence that his character for truth and veracity

and his general reputation for truth and honesty were

good. There was no contention that he had ever committed

any dishonest act, except as such contention might be re-

lated to the charge that he used the mails to defrand

Hanson and Harrold.

JURISDICTION.

It is contended that the United States Supreme Court

has jurisdiction to review the judgment of the Circuit

Court of Appeals here sought to be reviewed pursuant to

the provisions of Section 347 (a) (b) of Title 28 of the

United States Code.

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QUESTIONS PRESENTED.

It is contended by the petitioner:

1. That charge 1 contained in the probation officer's

statement as to violation of conditions of probation (R. p.

263) can only be construed to mean that he was violating

the Alabama law by engaging in the practice of medicine,

as defined by the Alabama law, without having first ob-

tained a license from the State Medical Board of the State

of Alabama and that the Alabama law with regard to the

construction of the evidence in this particular case is con-

trolling.

2. That the decision of the Circuit Court of Appeals to

the effect that there is evidence of each material element

of the offense of practicing medicine without license as

defined by the Alabama law is in conflict with the control-

ling decisions of the courts of last resort of the State of

Alabama, in particular the case of Harper v. State, 102 So.

55, construing Section 262, Title 46, of the Alabama Code

of 1940.

3. That the Court of Appeals erred in holding that each

constituent element of the offense of using the mails to

defraud was presented in the testimony in this case and

in this respect the Court of Appeals, in its opinion, is in

conflict with the applicable decisions of the Circuit Courts

of Appeals of other Circuits and the Supreme Court of the

United States, viz.: West v. U. S. (Tenth Cirenit), ... Fed.

(2d) 96; Gold v. U. S. (Eighth Circuit), 36 Fed. (2d), at

page 32.

4. That the Circuit Court of Appeals erred in holding

that a probationer charged with violating the conditions

of his probation in that he had violated a state law, or a

federal law, could have his probation revoked without any

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evidence of some essential element necessary to constitute

a violation of the particular state or federal law in ques-

tion.

5. That the Cireuit Court of Appeals erred in holding

that this petitioner was given fair notice of the charges

laid against him and ‘given fair opportunity to defend

against said charges by the trial court and, in that respect,

is in conflict with the case of Hollandsworth v. U. 8., 34

Fed. (2d) 423 (Fourth Circuit).

REASONS RELIED ON FOR OBTAINING THE WRIT.

1. The judgment and opinion of the Circuit Court of

Appeals holding that a person may have his probation re-

voked upon the charge of violating a state law without

som proof of each essential element necessary to consti-

tute a violation of the state law is contrary to the applica-

ble decisions of the Supreme Court of the United States

and of the Cireuit Court of Appeals of other Circuits,

among which are the cases of:

Escoe v. Zerbst, 55 Suj». Ct. 717;

Hollandsworth v. U. S., 34 Fed. (2d) 423;

Burns v. U. S., 287 U. S. 216, 53 Sup. Ct. 154.

2. The holding of the Cireuit Court of Appeals that

there was some evidence in this case sufficient to satisfy

the Judge presiding at the trial below that petitioner had

violated the Alabama law by practicing medicine without a

license was in conflict with the controlling law as an-

nounced by the courts of last resort of the State of Ala-

bama in the case of Harper v. State, 102 So. 55.

3. The judgment and opinion of the Cireuit Court of

Appeals holding that there was evidence sufficient to jus-

tify the trial judge in finding that the petitioner had

violated the federal laws prohibiting the use of the mails

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in furtherance of a scheme to defraud was in conflict with

the holding of the Cireuit Court of Appeals of the Eighth

Cireuit in the case of Gold v. U. 8. (Eighth Circuit), ...

Fed. (2d) 16-32; West v. U. S. (Tenth Circuit), 68 Fed. (2d)

96, and Durland v. U. 8. (U. S. Sup. Ct.), 16 Sup. Ct. Rep.

508-511, 161 U. S. 306-313, in that there was no evidence

that petitioner was not conducting his business of mer-

chandising proprietary remedies in good faith.

4. The holding of the Cireuit Court of Appeals was con-

trary to due process of law and with the applicable deci-

sions of the Supreme Court and the Circuit Courts of

Appeals of other Circuits in that the Circuit Court of

Appeals for the Fifth Circuit in the instant case has held

that a probationer may have his probation revoked upon

a charge of violating a state law without some evidence

of each essential element of the offense necessary to con-

stitute such a violation.

5. The holding of the Circuit Court of Appeals was con-

trary to due process of law and with the applicable deci-

sions of the Supreme Court and the Cireuit Courts of

Appeals of other Circuits in that the Circuit Court of

Appeals for the Fifth Circuit in the instant case has held

that a probationer may have his probation revoked upon

a charge of violating a federal law prohibiting use of the

mails in furtherance of a scheme to defraud without some

evidence of each essential element of the offense necessary

to constitute such a violation, which amounts to a holding

that a federal judge may arbitrarily revoke a probation

with evidence of a violation of some condition of the

probation being satisfactorily proven as to each essential

element thereof, in conflict with Escoe v. Zerbst, 55 Sup.

Ct. 717; Hollandsworth v. U. S., 34 Fed. (2d) 423; Burns

v. U. S., 287 U. S. 216, 53 Sup. Ct. 154.

in EE I

INJURY.

This petitioner saith that he suffered serious grievous

injury in that, notwithstanding he has conducted his mer-

cantile business of selling proprietary drugs in strict com-

pliance with the state law of Alabama and in strict com-

pliance with the federal statute prohibiting the use of the

mails with intent to defraud, he has upon a probation

hearing been held: guilty of violating the Alabama state

law prohibiting the practice of medicine with license and

been found guilty of using the mails in furtherance of a

scheme to defraud; and notwithstanding he has constantly

advised with and informed the prebation officer of his

method and manner of condux*ing his business and has,

in good faith, attempted to comply with the conditions of

his probation, he has had his probation revoked without

evidence sufficient to satisfy the Judge presiding at the

trial below that he has violated the conditions of his pro-

bation in the particulars charged against him and has

~ been sentenced upon such revocation of his probation to

pay a fine of $750.00, to stand committed, and to be com-

mitted to the -ustody of the Attorney General for a period

of one year; and your petitioner further says that there

was no evidence that the merchandise sold by him through

the mails, as charged, was not of value with relation to

the price charged comparative to that charged by all

others in the business of retailing proprietary remedies:

that such medicines were not beneficial for the purpose

for which they were sold; that he did not conduct his

business in good faith; that he did not make refunds to all

dissatisfied purchasers; and petitioner further says that

his general good reputation was admitted by the govern-

ment and by the Court; that there was no evidence of

any act of dishonesty and no charge of an act of dis-

honesty was contained in the charges upon which his

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probation hearing was conducted and that there was no

substantial evidence that he had violated the Alabama

law prohibiting the practice of medicine without license;

that the revocation of his probation was an arbitrary act

of the trial judge not justified by the evidence rendered

at the hearing upon the charges contained in the com.

plaint upon which he was tried; and your petitioner

herewith presents, as a part of this petition, a transcript

of the record in the Circuit Court of Appeals for the Fifth

Circuit, duly certified by the Clerk of said Court; except

that Exhibits in evidence sent down to the Circuit Court

of Appeals in their original form, consisting of documents

and books and packages of medicine, cannot be printed

in the printed record, and due to the fact that they are

now in the official custody of the Circuit Court of Ap-

peals for the Fifth Circuit, can only be presented to the

Supreme Court of the United States by virtue of an order

of the Supreme Court of the United States requiring the

Circuit Court of Appeals for the Fifth Circuit to send

them up to the Supreme Court of the United States and

your petitioner accordingly prays for such order to be

made and entered by the Supreme Court of the United

States. And your petitioner respectfully prays that a

Writ of Certiorari be issued out of and under the seal

of this Honorable Court directed to the United States

Cireuit Court of Appeals for the Fifth Circuit, command-

ing that Court to certify and send to this Court for its

review and determination, on a day certain to be therein

named, a full and complete transcript of the record and

all proceedings, together with all original exhibits on file

in that certain cause numbered and entitled on its Docket

No. 11848, Donald R. Manning, Appellant, v. United States

of America, Appellee, and that the judgment of the United

States Circuit Court of Appeals for the Fifth Circuit may

be reversed by this Court, and that your petitioner be dis-

charged without day and have such other and further

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relief in the premises as this Honorable Court may deem

just and proper.

G. ERNEST JONES,

Birmingham, Alabama,

Counsel for Petitioner.

es

ROBERT W. GWIN,

Birmingham, Alabama,

Of Counsel for Petitioner.

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SUPREME COURT OF TH@UNITED STATES. |

DONALD R. MANNING,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

BRIEF AND ARGUMENT

In Support of Petitioner’s Petition for

Writ of Certiorari.

POINT L

A Probationer May Not Have His Probation Revoked and

Be Sentenced Until He Has Been Given Notice of the

Specific Charge and an Oppurtunity to Be Heard in

His Defense.

Hollandsworth v. U. S., 34 Fed. (2d) 423;

Escoe v. Zerbst, 55 Sup. Ct. 717, 79 L. ed. 1566.

The following language is quoted from the decision in

the case of Hollandsworth v. U. S., supra, an opinion ren-

dered by the Circuit Court of Appeals for the Fourth Cir-

cuit on July 15, 1929:

‘‘Tt is not conceivable that Congress intended to

confer upon the Court the power to call back the

———ag

defendant at any time within five years after convic.

tion and imprison him, no matter how blameless his

conduct may have been during the interim or how

strictly he may have observed the terms of his proba-

tion. It follows that, whenever it is charged that a

probationer has failed to follow the instructions of

the Court, he may not be sentenced until he has been

given notice of the specific charge and an opportunity

to be heard in his defense, and until the Court, upon

hearing, shall have judicially determined that his

conduct during the probation period has not con-

formed to the cause outlined in the order of proba-

tion.’’ (Emphasis ours.) Hollandsworth Case, supra.

ams 16 a=

It is the insistence of the petitioner that he was not

given notice of the specific charge against him, nor was

he given a fair hearing in this cause. It is not suggested

that the conduct of the hearing before the Judge of the

District Court was intentionally unfair on the part of the

Judge, but it is seriously insisted that the procedure fol-

lowed by the Judge resulted in the denial of this peti-

tioner of a fair opportunity to be heard in his defense on

the charges brought against him, which is the essence of

a fair hearing and in this case amounted to an abuse of

that judicial discretion vested in the Court by the law

under which probation is granted.

Each of the two trial judges for the District Court for

the Northern District of Alabama were of the opinion that

it was not necessary for the probationer to be informed

of the particulars of any charge which was laid against

him as a basis for violating his probation. When the

probationer was brought into court on the 15th day of

November, 1946, counsel for the petitioner advised the

court that petitioner had not seen the charges and had

not seen the affidavit and had not been served with any

copy of any affidavit, or amended affidavit and complaint

in order that petitioner might prepare his case (R. pp.

<

64-65) and was informed by the Court that no formal

complaint was required,

‘‘that the probation officer merely comes in and states

to the Court that the defendant has violated the con-

ditions of the judgment of the probation”? (R. p. 65),

and thereafter informed the Court that he did not have a

copy of the affidavit, nor a copy of the warrant issued in

this case.

The Court then overruled the petitioner’s motion for a

formal complaint and announced that the case would “be

heard on next Friday morning.”’

Counsel for petitioner also informed the Court at that

time that they had first seen petitioner on that morning

and had learned in a general way that he was charged

with practicing medicine without a license.

‘We don’t know who the witnesses are. We don’t

know what he is charged with. We have had no

opportunity to summons witnesses, and the first ele-

ment of any fair hearing is that a man be informed

of what he is called upon to answer and be given a

chance to produce witnesses’? (R, p. 68).

Then in open court, later on the same day, counsel for

the government stated that the government charged that

the probationer used the mails to defraud one Charles

Edel of Box 117, Cherokee, Alabama (R. p. 69); and the

same charge with reference to M. T. Hanson of Repton,

Alabama; and the same charge with reference to Olin

Harold of Box 369, Bay Minette, Alabama (R. p. 70).

The Court, thereupon, passed the hearing until the 22nd

day of November at 10:00 o’clock, A. M.

Thereafter, on the 22nd day of November at 10:00

o'clock, A. M., petitioner, with his counsel, again appeared

+ +e

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in Court and made a motion for a more particular state.

ment of the type of violation (R. p. 71) and the Court

at that time stated:

‘‘T concur in Judge Lynne’s ruling that you are not

entitled to it. I don’t think, as a matter of fact, that

you are entitled to a formal trial in the matter, but I

expect to give you one’’ (R. p. 71).

Counsel for petitioner then advised the Court that he

had been given a memorandum of the charges, headed

‘‘Probation Revocation Hearing, Birmingham, Alabama,

Court Docket No. 116558., Probation File No. 7229,’ and

down at the bottom there was the notation, ‘‘ Witnesses

to be listed,’’ and moved the Court for a more particular

specification, ete. (R. pp. 72-73), which motion was over-

ruled and exception duly taken.

Thereupon the petitioner was put to trial (R. p. 74).

Petitioner, through his counsel, stated to the Court that

they had made every effort to ascertain what act or con-

duct was charged as being a violation of the Alabama

statute against the practice of medicine without license, or

what act or conduct was charged as being a violation of

the federal statute prohibiting the use of the mails in fur-

therance of schemes to defraud, that being the two condi-

tions of the probation with which petitioner was charged

in the memorandum (R. p. 73); that they had been to the

Clerk’s Office and demanded a list of the witnesses sum-

moned by the government, which was refused; and he

was not informed of any of the facts concerning any act

or conduct charged against him (R. p. 73).

The only evidence presented against this petitioner with

reference to using the mails for the purpose of fraud was

evidence procured by an entrapment of petitioner by a Post

Office Inspector of the Federal Government working in

a. ee

conjunction with Federal Agents connected with the Food

and Drug Administration of the Federal Government (R.

pp. 77-110, 111 et seq.). It appeared that the letters upon

which the charges of using the mails to defraud were based,

and the shipments of drugs connected therewith, were pro-

cured by virtue of an entrapment perpetrated by the said

Wilkerson and that the names of the parties by whom

the letters were purported to be addressed were fictitious.

Petitioner was not advised that doctors and chemists from

the Pure Food and Drug Administration would be present

and testify against him. He had no opportunity to prepare

his defense to their testimony.

It is respectfully submitted that under these cireum-

stances the petitioner was denied that fair hearing which

is essential to the exercise of a judicial discretion and that

the ruling of the Cireuit Court of Appeals in this respect

is in conflict with the holding of the Cirenit Court of Ap-

peals, Fourth Circuit, in the case of Hollandsworth v. U. s.,

34 Fed. (2d) 423, in two definite particulars:

(a) He was not given notice of the specific charge

to be brought against him.

(b) He was not given a fair opportunity to be

heard in his defense.

POINT II.

There Being No Federal Law Regulating the Practice of

Medicine in a State, the Statute of the State and Deci-

sions of the State Courts of Last Resort Are Binding

Upon the Federal Courts in any Proceeding Insti-

tuted Therein.

Collins v. Texas, 223 U. S. 288, 32 Sup. Ct. 286;

Watson v. Maryland, 218 U. S. 173, 30 Sup. Ct. 644;

McVicar v. State Board of Law Examiners et al.,

6 Fed. (2d) 33;

Title 28, Sec. 725, U. S C.

_—

In the case of McVicar v. State Board of Law Exam.

iners et al., 6 Fed. (2d) 33, wherein McVicar attempted to

enjoin the Attorney General of the State of Washington

from instituting proceedings to disbar him, under the

provisions of a statute to regulate the practice of law in

that State, the Court ruled:

‘“*That whenever there has been a construction of a

state constitution or state statute by the court of last

resort of the state, it is binding and conclusive in all

federal courts in which such construction is involved,

no matter by what procedure the same may be

brought to the attention of the Federal tribunal.”

The Alabama Statute regulating the practice of medi-

cine is Title 46, Sec. 262:

‘‘Any person who treats or offers to treat diseases

of human beings in this state by any system of treat-

ment whatsoever, without having obtained a certificate

of qualification from the State Board of Medical Ex-

aminers, shall be guilty of a misdemeanor and upon

conviction shall be fined for each offense not less than

fifty nor more than five hundred dollars, and may be

imprisoned for not less than one month nor more

than three months, and where indictments are pre-

ferred by a grand jury such cases shall be only tried

in the court wherein the indictment is preferred and

shall not be transferred to any court.’’

The controlling case relative to the practice of medi-

cine in the State of Alabama is Harper v. State, 102 So.

55. In the Harper case the defendant was a licensed

vendor of patent medicines. Certain parties who testified

as witnesses for the state went to defendant and told him

they suffered from certain diseases of the back, and he

sold them of his wares on which there were labels recom-

mending such medicines for the ailments indicated and

designated the dose to be taken. Defendant did not hold

himself out as a physician, made no charge for services

a ~ a a

>

|

=

as such, and received no compensation other than such

profit as he derived from the sale of the patent medicine.

It is also in evidence that in selling the medicine defend-

ant recommended it as being a remedy for the disease '

specified.

The defendant had been convicted in the lower court

and the Alabama Court of Appeals reversed the decision

stating in their opinion the actions of the defendant did

not constitute a violation of the Alabama Statute.

The Government would like to follow the minority

opinion in this case and in order to show the full facts

upon which the court ruled, the following excerpt from

the minority opinion is given:

‘The evidence for the state tended to show the fol-

lowing facts: The defendant was a vendor of patent

medicines and on several occasions various parties

had come to him afflicted with diseases er physical

troubles such as rheumatism, indigestion, and gonor-

rhea. The parties suffering from such diseases re-

lated to the defendant their troubles and the defend-

ant directed that they should take certain medicine

out of his stock of patent medicine which he was

selling. He told them that such medicine would cure

or remedy the disease complained of. The parties

dealing with him purchased the medicine he advised

and followed his directions in taking it.’’

By no stretch of imagination can the petitioner, Manning,

be said to have gone to any greater extent, offered any

more advice, or made any suggestions relative to treatment

that went further than the actions indicated in the Harper

case. If Harper was not practicing medicine then Manning

was not practicing medicine. While it is true that counsel

for the Government would attempt to lead the court to be-

lieve that the minority opinion was the proper opinion to

follow, vet the majority opinion controls and the rule in

—_ sm

this case governs the practice of medicine in the State of

Alabama. It is further called to the Court’s attention

that no witness appeared in behalf of the Government who

was properly qualified to testify as to what is the practice

in medicine in the State of Alabama.

The opinions given by the doctor who worked for the

Government were not based on any knowledge of the Ala-

bama law, as the doctor plainly stated that he had no

knowledge of what would constitute the practice of medi-

cine in the State of Alabama. We respectfully suggest to

the Court that it is not the duty of the United States Gov-

ernment to regulate the practice of medicine in the State

of Alabama, but that is a duty that is left with the state

itself. If the State of Alabama wishes to allow certain

practitioners to follow their practices in this state and

some other state would prohibit them from practicing in

that state, certainly it is not the obligation of the Govern-

ment to step in and try to dictate who can practice medi-

cine in any particular state.

It would appear to be an extremely dangerous precedent

for the federal courts to adopt the expedient of probation

hearings with the main purpose in view of imposing a

federal rule, relating to the practice of medicine in a state,

upon probationers contrary to the law of the state where the

probationer lives. This amounts to an intrusion in mat-

ters of peculiar domestic concern. In the instant case the

Pure Food and Drug Administration has adopted the ex-

pedient of going beyond the legitimate scope of its own

functions (a) to interfere with the administration of the

probation laws and assume the duties of a probation officer

in checking up on a probationer; (b) in an effort to impose

the federal law with reference to interstate commerce in

drugs and medicine upon transactions wholly within the

state, contrary to the law of the state with regard to such

intrastate transactions. To permit this would appear to

be very unsound policy.

—

=

The decision in the Harper case was the law in this

state when rendered in 1924 and this decision has not been

overruled. Further, an application for rehearing was made

in this case and the application was denied, and Justice

Foster, in setting out the minority of the Court, rendered

the following decree:

‘*T respectfully dissent from the views expressed in

the majority opinion. If the law is as there laid down,

the ‘Indian Doctor’ may peddle patent medicines from

house to house and under the guise of a patent medi-

cine vendor visit the sick in their home and upon

inquiry as to the nature of their diseases prescribe for

their ailments whether they be tuberculosis, venereal

diseases, malaria, typhoid fever or what-not. They

impose upon the ignorant and the gullible without fear

of molestation by the officers of the law. The law of

Alabama as I understand it and as given in my orig-

inal dissenting opinion in this case to which I now

adhere is intended to discountenance and prevent such

practices. I am of the opinion that the application of

the State for a rehearing should be granted and that

the judgment of reversal should be set aside and the

judgment of the lower court affirmed.’’

Has any of the testimony in this case, that is, the Man-

ning case, shown that the petitioner did anything or went

beyond the scope of the actions allowed under the Ala-

bama Statute beyond those actions as set out in the minor-

ity opinion of Judge Foster? Judge Foster plainly stated

that a man may peddle patent medicines and that he may

visit the sick, and that he mav inquire as to their diseases,

and that upon learning of their troubles he may suggest,

recommend, or prescribe certain medicines for their use.

In the case at bar, has it ever been shown that the peti-

tioner, Manning, was ever paid a single cent for any exam-

inations or any diagnosis which it is claimed that he made?

a

—

An exhibit has been submitted to the Court wherein the

prices charged by Manning for medicines were quoted.

And an examination of this price list will show that his

medicines all sold for very nominal sums ranging from

24¢ up. It is outrageous to contend that a man who sells a

package of medicine or capsules for the sum of twenty-five

or fifty cents is practicing medicine or has received any

money or compensation for any recommendations or sug-

gestions that he made.

The unusual nature of the prosecution in this case is

brought to the Court’s attention, in view of the fact that

not a single patient or so-called patient of the petitioner

has been brought before the court to testify that the prep-

arations sold to him by the petitioner were not beneficial.

While it may be possible that these preparations were

not able to completely cure or alleviate all conditions, I

wonder if it has not been the experience of the members of

this Honorable Court that they have in times past been

treated by physicians who recommended certain remedies

or medicines for their physical ailments, and upon taking

these various medicines, the members of the Court found

that they were of no benefit whatsoever, and we are sure

that no member of this Court has yet to find a physician

who made a refund because of the failure of his recom-

mendation or diagnosis. Fortunately, physicians bury

their mistakes.

POINT ITI.

The Good Faith of a Defendant in a Prosecution for Making

Use of the United States Mails in Furtherance of a

Scheme to Defraud Is a Complete Defense.

Durland v. U. S., 161 U. S. 306, 16 Sup. Ct. 508,

40 L. Ed. 709;

Rudd v. U. S., 173 Fed. 912 (C. C. A.);

a

Sandals v. U. S., 213 Fed. 569 (C. C. A.);

West v. U. S., 69 Fed. (2d) 96 (Tenth Circuit) ;

Gold v. U. S., 36 Fed. (2d) 16.

a es

Mr. Justice Brewer, in the case of Durland v. U. &S.,

161 U. S. 306, 16 Sup. Ct. 508, at 511, said:

‘‘The significant fact is the intent and purpose. The

question presented by this indictment to the jury was

not, as counsel insist, whether the business scheme

suggested in this bond was practicable or not. If the

testimony had shown that this Provident Company and

the defendant, as its president, had entered in good

faith upon that business, believing that out of the

moneys received they could, by investment or other-

wise, make enough to justify the promised returns, no

conviction could be sustained, no matter how vision-

ary might seem the scheme.’’ Durland v. U. 8., supra.

The case of West v. U. S., 68 Fed. (2d) 96, is on all fours

with the instant case, except in the West case the defendant

was being prosecuted in a plenary proceeding before a

jury and in the instant case petitioner was being prose-

cuted on probation hearing before a judge, and, of course,

the measure of proof in a criminal case is that the evidence

should be sufficient beyond all reasonable doubt, whereas

the measure of proof in the instant cast is that the judge

be reasonably satisfied. However, in the case of West v.

U. S., supra, the Cireuit Court of Appeals for the Tenth

Cireuit held that evidence practically identical to that in

this case was not sufficient to go to the jury on the guilt

of the defendant charged with using the mails in further-

ance of a scheme to defraud.

It is interesting to note that one of the two chief wit-

nesses in the West case was the same Dr. Norris who testi-

fied in the instant case for the government. It is also

interesting to note that this same Dr. Norris, in the West

case, stated that he didn’t consider ‘‘Potter’s Therapeutics

_ Aare.

sotto

Materia Medica and Pharmacy’’ an authority, just as he

testified in the instant case when the petitioner introduced

that book as his authority for the recommendations which

he made with regard to the beneficial qualities of the

medicinal ,reparations which he sold. It will be ob-

served from reading the testimony of Dr. Norris (R. pp.

119-168) that he admitted that preparations which peti-

tioner sold were beneficial in alleviating the ailments for

which petitioner recommended such preparations. He ad-

mitted that the description of his condition as stated in the

letter from Olin Harold to Manning Herb House (R. pp.

121-123) would indicate, among other conditions, an ulecer-

ated stomach, thereby admitting that the petitioner had

made no false statement with regard to the condition of

Harold. He also admitted in his testimony that the eal-

cium carbonate contained in the medicine recommended

by this petitioner would be beneficial in relieving or allevi-

ating such condition:

‘*Yes, the use of this preparation as directed would

help some stomach ulcers, alleviate the symptoms tem-

porarily, help some stomach ulcers in the course of

time if they keep taking this and keep feeling better.”

It further appears from the evidence that the petitioner

sold his medicine upon a guarantee to refund the money

if the customer was not satisfied, and that he faithfully

complied in every instance with this guarantee.

It is respectfully submitted to the Supreme Court of

the United States that on a trial held in a probation hear-

ing to determine whether or not the probationer has vio-

lated the conditions of his probation prescribing that he

shall not violate a federal law the judge should not find

the probationer guilty of violating a federal law upon any

evidence where it would be his duty to direct the jury to

acquit, if the man stood charged before a jury of violat-

ing the same federal law.

=~ =

The Circuit Court of Appeals seems to have miscon-

strued the rule to be that a federal judge can revoke a

probation without any evidence to establish the criminal

offense upon which the revocation is based.

We respectfully submit that the revocation of probation

in this case cannot be supported upon the ground that

petitioner violated a federal law in that he used the mails

in furtherance of a scheme to defraud as charged in the

memorandum filed against him and we respectfully sub-

mit that in this particular the judgment of the Circuit

Court of Appeals stands to be reversed.

POINT IV.

An Order Admitting a Defendant to Probation May Not

Be Revoked Arbitrarily by the Judge, the Probationer

Being Entitled to the Opportunity of a Fair Hearing

Upon Specific Charges With a Fair Opportunity to

Defend.

Hollandsworth v. U. S., 34 Fed. (2d) 423;

Escoe v. Zerbst, 55 Sup. Ct. 717, 79 L. ed. 1566.

The Circuit Court of Appeals for the Fourth Circuit,

stated in the case of Hollandsworth v. U. S., 34 Fed. (2d)

423:

‘“* * * whenever it is charged that a probationer

has failed to follow the instructions of the Court, he

may not be sentenced until he has been given notice

of the specific charge and an opportunity to be heard

in his defense, and until the Court, upon hearing, shall

have judicially determined that his conduct during

the probation period has not conformed to the cause

outlined in the order of probation.’’ Hollandsworth

case, supra.

In the instant case it is the insistence of the petitioner

that he was denied that fair hearing which it is the genius

of our American system of justice to guarantee to every

pa

person before the imposition of any penalty can be jus-

tified.

It is respectfully submitted that a judge can not impose —

upon a probationer his own arbitrary ethical conception

of what is right and what is wrong, nor can a judge im-

pose upon a probationer a standard of conduct higher

than that required by law, unless the probationer has

been given notice in his order of probation of the specific

act which it is the order of the court he may not do or

perform.

In the instant case the probationer was not given notice

of any charge against him prior to being arraigned by

the court. In fact, no charge was filed against him when

he was first arraigned in court and during the time of the

arraignment a mere memorandum called a ‘‘Probation Offi-

cer’s Statement’? was brought to the attention of the

Court.

The proceedings began with an original parol charge

against this petitioner that he was violating the Alabama

law by practicing medicine without a license. A condi-

tion of his probation was that he should not ‘‘violate any

state or federal law.’’ Later this charge was orally

amended by charging that he had ‘‘used the mails to

defraud’’ in three instances. This amounted to a charge

that he had violated a condition of his probation that he

should not ‘‘violate any state or federal law.’’ So it

appears that any violation charged against him hinged

around the charge that he had violated a condition of

his probation that he should not ‘‘violate any state or

federal law.’’

It is his contention here that he was not given specific

notice of the act charged against him, contrary to the rule

announced in the Hollandsworth case, supra. It is further

his contention that he was denied a fair opportunity to

<a

defend when the court refused to require the government

to inform his counsel of the particular acts of misconduct

charged against him and that the injury of this denial

was emphasized and accentuated by reason of the fact

that he was denied opportunity to know what witnesses

would be called to testify against him. It was, therefore,

jeft open to the wide area of imagination for him to deter-

mine what he would be called upon to answer at the time

the case proceeded to trial. This certainly does not con-

form to the American standard of judicial procedure,

whether the hearing be summary or whether it be plenary.

The probation officer never took the witness stand. The

undisputed testimony was that the petitioner had, in every

instant, conformed to every instruction of the probation

officer and that he had kept the probation officer fully

advised and fully informed as to his method of doing

business; that immediately upon his sentence upon the

original charge and admission to probation, he had dis-

continued every act which might be construed as violating

the federal law concerning the interstate transportation of

drugs in violation of the Pure Food and Drug Act and

regulations made pursuant thereto; that he had continued

to operate his Drug Store at Bessemer, Alabama, from the

date he was admitted to probation, and to operate his

bath-cabinets with the full knowledge and approval of the

probation officer; that he had submitted to the probation

officer copies of letters which he had written and requested

the advice and counsel of the probation officer with regard

to these letters. The probation officer was sitting in the

Court room, hearing all of the testimony and had the peti-

tioner’s testimony along this line been in the slightest

degree false, most certainly the probation officer would

have taken the witness stand to deny such false statements.

No witness was brought against this petitioner who

lived in the State of Alabama. Not a single physician or

druggist in the State of Alabama complained. Not a

AR a EEE iE as Mig 0

Rr ane

a

single customer of petitioner complained. It is patent

from reading the testimony that the chief object of the

entire proceeding by the Pure Food and Drug Administra-

tion in Washington, D. C., was to put this man out of

business entirely, notwithstanding it clearly appears that

he had committed no act which came within their jurisdic-

tion. It clearly appears that the Pure Food and Drug

Administration was seeking to impose upon a domestic

intrastate enterprise a standard of conduct meeting their

approval with regard to interstate commerce, and that, in

order to do so, having no law to accomplish their purpose,

they set out to administer the probation system by check-

ing upon this petitioner, entrapping him, and instituting

proceedings to revoke his probation.

If the Court had intended at the beginning that this

petitioner should terminate his domestic drug business,

the court could easily have made that one of the conditions

of probation. The petitioner would then have had fair

notice that he could not sell his drugs any longer and

that he could not conduct his business of administering

baths to the public, if the court had, in its order of proba-

tion, forbidden such conduct, but when the court did no

more than forbid him to ‘‘violate a state or federal law,”

certainly the court then had no power to punish him unless

there was some evidence of such a violation.

_ In applying the standard to determine the violation, the

court was bound by the construction of the courts placed

upon these laws, state and federal. It was not within the

province of the court to impose its own peculiar ethical

conception as to what a man should or should not do,

under the guise of administering and interpreting the

state or federal law and determining when, or if, said

state or federal law had been violated.

There was no charge made that the petitioner had been

dishonest, or had committed any dishonest act. In fact,

— oe

it was decidedly admitted by the government at the trial

that he had been honest and conducted an honest business,

giving value received for the money received. Yet the

court, when it came to pronounce judgment, first announced

that probationer’s probation was revoked for and on ac-

count of the fact that the court had determined that pro-

bationer had been violating the Alabama law with regard

to practicing medicine without a license. Then, as an after-

thought subsequent to an appeal by petitioner with re-

gard to punishment to be imposed, added a finding that

the petitioner had violated the federal law with reference

to using the mails to defraud, and, evidently having some

doubt with regard to the correctness of these findings,

went further and based the revocation of probation upon

“‘dishonesty.”’

May we say, in all respect to the trial judge, that we

have absolute confidence in his intention to be fair. How-

ever, for some reason, there seems to have developed in

the mind of the trial judge an attitude of prosecution,

rather than that impartiality which adorns the conduct of

atrial judge. A few of the many instances of this ‘‘prose-

euting’’ attitude on the part of the trial judge are illus-

trated by the fact that after the case had been rested and

counsel for the government and counsel for defendant were

to argue the case and hearing had been passed for the

sole purpose of the argument, and all witnesses had been

excused, when the court resumed its hearing on November

95, 1946, the court proceeded to interrogate the petitioner

with regard to a complaint which had been made against

the petitioner in the State of Georgia many years before he

came to Alabama and many years before this petitioner

was convicted and admitted to probation in the instant

ease (R. p. 251).

Then the court took a recess and after the recess was

over, again called the petitioner to the witness stand to

es

ee

— |

prove that the probation officer had given the petitioner a

copy of an instrument admitted in evidence as Court’s

Exhibit A (R. p. 252).

It clearly appears that the petitioner was never con-

victed of any offense in the State of Georgia so far as the

evidence in this case shows (R. p. 253). The Court’s state-

ment (R. pp. 253-4) clearly shows that the Court was im-

posing its own personal view as to what would constitute

practicing medicine and with regard to the proper policy

to be enforced in the State of Alabama with regard to the

sale of drugs and proprietary remedies.

The Court’s statement also shows that the Court was con-

sidering the fact that somebody made a complaint in

Georgia against him which was never tried by any court,

and, for aught that appears here, was never officially ree-

ognized as a complaint by any court, and which occurred

many years before he was admitted to probation (R. p.

256).

It further appears that the Court was imposing its own

ethical view with regard to what was honest business or

dishonest business without regard to the rule of the fed-

eral cases and the Alabama state cases to which we have

called this Court’s attention. Notwithstanding the fact

that when, during the hearing, petitioner started to prove

the intrinsic honesty of his business by showing that he

gave value received for the money received; that the medi-

cine which he offered for sale had a comparative value

equal to that of other medicines sold by other reputable

persons engaged in the business at a comparative price,

and when he started to prove his general good reputation

and general good character for truth and honesty, the

court cut him off by saying that the court would assume

him to be a man of truth and honesty.

It also appears in evidence that the probation officer

was present and interrogated this petitioner and caused

this petitioner to make a statement in the presence of a

postoffice inspector to be used against him in these pro-

ceedings, after these proceedings were begun and before

the trial. This court is familiar with the fact that a pro-

bationer is required by the rules of the court to make full

confession and free disclosures to the probation officer.

sing ios

We respectfully submit that it is not fair to a proba-

tioner for a probation officer to take an enforcement offi-

cer of another arm of the government with him when he

interviews his probationers, or to permit them to be pres-

ent at such time during such interviews and then permit

these enforcement officers to use any statement thus ob-

tained, directly or indirectly, from the probationer under

the coercion of a required interview with the probation

officer as evidence.

It further appears that the court permitted a doctor who

was not acquainted with Alabama law, who had never

lived or practiced in Alabama and who was an agent of

the Pure Food and Drug Administration at Washington,

D. C., to testify as to his opinion as to what constituted

the practice of medicine in Alabama.

We might recite many other instances. The record is

replete with instances along the same line.

CONCLUSION.

We respectfully submit that when a probationer at-

tempts, as this probationer did, in good faith to comply

with the instructions and advice of the probation officer,

and requests the probation officer to advise him with

regard to his practices and so conducts himself that the

probation officer sees no reason to institute proceedings on

his own initiative; when the proceedings are initiated by

the Pure Food and Drug Administration of Washington,

D. C., which has no function to perform with regard to

Ce ae IN OF NO ay

See —

probation, solely for the purpose of imposing upon a

resident of a state, in the conduct of his intrastate busi-

ness, a standard of conduct which they are not authorized

by law to impose and attempt to adopt the expedient of

using the probation system to interfere in matters of state

domestic policy and law, it amounts to such an intrusion

of federal interference with said affairs that if it be per-

mitted to stand, will open the door for the federal govern-

ment, through the expedient of the federal probation sys-

tem, to interfere with domestic affairs of a state with

regard to any domestic matter.

It may be true that many people would not buy and use

the proprietary remedies sold by the petitioner. It is also

true that many people cling to the old ideas. The book

offered in evidence by the petitioner as authority for his

opinion that the medicines sold by him had curative prop-

erties with regard to the ailments for which they were

recommended, Potter’s Cyclopedia of Botanical Drugs and

Preparations (R. p. 216), is expressly recognized as suff-

cient authority to justify petitioner’s position in the case

of West v. U. S., 69 Federal (2d) 96, where the Circuit

Court of Appeals for the Tenth Circuit, notwithstanding

the testimony of the same Dr. Norris who testified in this

case, held that the seller of drugs, basing his claims for

their curative properties upon Potter’s Cyclopedia of

Botanical Drugs and Preparations, was fully justified and

entitled to the directed verdict on the ground of good faith.

It would, therefore, follow that the trial judge in this

ease was arbitrarily imposing his own ethical notion as to

the propriety of a person using the medicines which this

petitioner sold; that he was attempting to impose a stand-

ard upon the entire public of complying with the stand-

ards for use and sale of medicines adhered to by one school

of thought, and to deny all persons who adhered to an-

other school of thought with regard to the proper drugs

aa,

and medicines to be used for the treatment of human ail-

ments and diseases, the right to the exercise of their own

judgment. That the trial judge was honest in his own

ethical view does not mitigate the fact that his decision was

arbitrary and in conflict with the rule announced in West

y. U. S., supra.

If the court had desired to prohibit petitioner from sell-

ing these medicines it could have done so by adding a fur-

ther condition of probation and the petitioner would cheer-

fully have complied therewith.

It is respectfully submitted that the sentence and judg-

ment in this case should not be maintained and that this

court should, upon petition for certiorari, reverse and ren-

der the cause, or remand it with proper instructions to the

court below.

Respectfully submitted,

eee eee eee eee eee eee ee

G. ERNEST JONES,

Birmingham, Alabama,

Counsel for Petitioner.

ee

ee

ROBERT W. GWIN,

Birmingham, Alabama,

Of Counsel for Petitioner.

PO EE Tee,