# Petition for Writ of Certiorari — Manning v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1337%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1947 - **Citation:** 332 U.S. 792 ## Text FILE COPY SEP 2 1947 “ar RRL ATE ove OROPLEY FF QLERK 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. men Sr. Lovis Law PrintiNne Co., 415 North Highth Street. CE ntral 4477. een sce a IE a 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 fs ERPS SRADRSAAA EECA AR RRADES KOK Oe o RR SS heemntinen een 2S EP UN ee ii 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, eee Ie eee ee nm onan 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 —— ~ la ow me a Ee En OTL 7 rd ore 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- > eacamne sen” . een eee ee SBN ANS SEP RT ASNT ANE ME EIT LN et y SE A AE OT ay BINH a en 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 dices 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. — oe 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. ee a. re 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 ++ te ne ~~ a » | son Qin 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 ee 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 AO OIE OTE v ay — aN 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 rn a ee 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. | a ne = _—-~—~ a — eo EE > a eR GIT PUY HP 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 = 18 .. 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