14,990; State v. Judd, 221 Mo. 554, 120 S. W. 780. Immaterial allegations which are not necessary to the charge may be rejected as surplusage; but, where they negative the charge, they cannot be rejected, and they are fatal to the count. Comyn's Dig.; Pleader, chap. 29; United States v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; 2 Bishop, New Crim. Proc. § 482; Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370. Where the indictment charges one act and the evidence proves another, that is, where there is a variance between the allegations and the proof,it is fatal. It is of the substance; and, as a matter of law, a conviction on the charge cannot be sustained on the proof where there is such a variance between them. In such a case, the jury should be instructed to find the defendant not guilty; and, even after a verdict of guilty, and notwithstanding it, the court should pronounce for the defendant or arrest judgment. Burton v. United States, 196 U. S. 283, 49 L. ed. 482, 25 Sup. Ct. Rep. 243; Williams v. State, 107 Ga. 693, 33 S. E. 641; Com. v. Packard, 5 Gray, 101; State v. Judd, 221 Mo. 554, 120 S. W. 780. Neither the court nor the jury can go behind the statute and determine what was the intention of Congress in enacting it, and decide that any person is guilty of an offense merely because they think that what he actually did do was to avoid the statute, if the acts which he did were not prohibited and made criminal by the statute itself. United States v. Harris, 177 U. S 305, 44 L. ed. 789, 20 Sup. Ct. Rep. 609. Solicitor General Frierson argued the cause and filed a brief for defendant in error. Mr. Justice Pitney delivered the opinion of the court: Plaintiff in error was indicted and convicted for violating § 2 of an act of Congress approved December 17, 1914, commonly known as the Harrison Antinarcotic Act (38 Stat. at L. 785, chap. 1, Comp. Stat. § 6287g, 4 Fed. Stat. Anno. 2d ed. p. 177). His motion in arrest of judgment having [191] been overruled (253 Fed. p. 213), he brought the case here by direct writ of error under § 238, Judicial Code, upon the ground of the unconstitutionality of the act. Afterwards this question was set at rest by our decision in United States v. Doremus, 249 U. S. 86, 63 L. ed. 493, 39 Sup. Ct. Rep. 214, sustaining the act; but our jurisdiction continues for the purpose of disposing of other questions raised in the record. Brolan v. United States, 236 U. S. 216, 59 L. ed. 544, 35 Sup. Ct. Rep. 285; Pierce v. United States, 252 U. S. 239, 64 L. ed. 542, 40 Sup. Ct. Rep. 205. These questions relate to the sufficiency of the indictment, the adequacy of the evidence to warrant a conviction, the admissibility of certain evidence offered by defendant and rejected by the trial court, and the instructions given and refused to be given to the jury. The indictment contained twenty counts, differing only in matters of detail. Defendant was convicted counts, acquitted upon the others. Each upon eight count averred that on a date specified, at Pittsburg, in the county of Allegheny, in the western district of Pennsylvania, and within the jurisdiction of the court, defendant was a practising physician, and did unlawfully, wilfully, knowingly, and feloniously sell, barter, exchange, and give away certain derivatives and salts of opium, to wit, a specified quantity of morphine sulphate, to a person named, not Solicitor General King, Assistant At-in pursuance of a written order from such torney General Stewart, and Mr. W. C. Herron also filed a brief for defendant in error. 1 Sec. 2. That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Noth ing contained in this section shall apply(a) To the dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist, or veterinary surgeon registered under this act in the course of his professional practice only: Provided, That such physician, dentist, or veterinary person on a form issued in blank for that purpose by the [192] Commissioner of Internal Revenue, under the prosurgeon shall keep a record of all such drugs dispensed or distributed, showing the amount dispensed or distributed, the date, and the name and address of the patient to whom such drugs are dispensed or distributed, except such as may be dispensed or distributed to a patient upon whom such physician, dentist, or veterinary surgeon shall personally attend; (b) To the sale, dispensing, or distribution of any of the aforesaid drugs by a dealer to a consumer under and in pursuance of a written prescription issued by a physician, dentist, or veterinary surgeon registered under this act: phine users,-for the mere purpose, as the jury might find, of enabling such persons to continue the use of the drug, or to sell it to others; in some cases he made a superficial physical examination, in others none at all; his prescriptions called for large quantities of morphine,-8 to 16 drams at a time,-to be used "as directed," while the directions left the recipient free to use the drug virtually as he pleased. His charges were not accord visions of 2 of the act, "in manner following, to wit, that the said Jin Fuey Moy, at the time and place aforesaid, did issue and dispense" to the person named a certain prescription, of which a copy was set forth, and that said person "was not then and there a patient of the said Jin Fuey Moy, and the said morphine sulphate was dispensed and distributed by the said Jin Fuey Moy not in the course of his professional practice only; contrary to the form of the acting to the usual practice of medical men, of Congress," etc. It is objected that the act of selling or giving away a drug and the act of issuing a prescription are so essentially different that to allege that defendant sold the drug by issuing a prescription for it amounts to a contradiction of terms, and the repugnance renders the indictment fatally defective. The government suggests that the clause as to issuing the prescription may be rejected as surplusage; but we are inclined to think it enters so intimately into the description of the offense intended to be charged that it cannot be eliminated, and that unless defendant could "sell," in a criminal sense, by issuing a prescription, the indictment is bad. If "selling" must be confined to a parting with one's own property, there might be difficulty. But by § 332 of the Criminal Code [35 Stat. at L. 1152, chap. 321, Comp. Stat. § 10,506, 7 Fed. Stat. Anno. 2d ed. p. 984], "whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." Taking this together with the clauses quoted from § 2 of the Anti-narcotic Act, it is easy to see, and the evidence in this, case demonstrates, that one may take a principal part in a prohibited sale of an opium derivative belonging to another person by unlawfully issuing a prescription to the would-be purchaser. Hence there is no necessary repugnance between prescribing and selling, and the indict ment must be sustained. The evidence shows that defendant was a practising [193] physician in Pittsburg, registered under the act so as to be allowed to dispense or distribute opium and its derivatives with out a written order in official form, "in the course of his professional practice only;" that he was in the habit of issuing prescriptions for morphine sulphate without such written order, and not in the ordinary course of professional practice; that he issued them to persons not his patients, and not previously known to him,-professed mor but according to the amount of the drug prescribed, being invariably $1 per dram. All the prescriptions were filled at a single drug store in Pittsburg, the recipients being sent there by defendant for the purpose; and persons inquiring at that drug store for morphine were sent to defendant for a prescription. The circumstances strongly tended to show co-operation between defendant and the proprietors of the drug store. At and about the dates specified in the indictment, the spring of the year 1917,-and for more than two years before, the number of prescriptions issued by defendant and filled at this drug store ran into the hundreds each month, all calling for morphine sulphate or morphine tablets in large quantities. In one case a witness who had procured from defendant two prescriptions,-one in his own name for 10 drams, the other in the name of a fictitious wife for 6 drams, and had been directed by defendant to the specified drug store in order to have them filled, asked defendant to confirm the prescriptions by telephone, so there would be no trouble; to which defendant replied: [194] "Oh, never mind; we do business together; we understand each other." On another occasion the same witness, having received from defendant two prescriptions for 8 drams each, one in his own name, the other in the name of the supposed wife, stating in one case a Cleveland address, in the other a Pittsburg address, presented them at the drug store to be filled, and was told by the manager that he would not fill any more prescriptions under a Pittsburg address,-"They were taking too big a chance, and I must go back to the Chinaman and tell him what he told me, and he would understand.— the Chinaman would understand." Witness returned the two prescriptions to defendant, told him what the manager had said, and defendant retained those prescriptions and issued to the witness a new one for 16 drams in place of them, with which the witness returned to the drug store and procured the specified quantity of the drug. In each case where defendant was found guilty the evidence fully warranted the jury in finding that he aided, abetted, and procured a sale of morphine sulphate without written order upon a blank form issued by the Commissioner of Internal Revenue; and that he did this by means of prescription issued not to a patient, and not in the course of his professional practice, contrary to the prohibition of § 2 of the act. Manifestly, the phrases "to a patient" and "in the course of his professional practice only" are intended to confine the immunity of a registered physician, in dispensing the narcotic drugs mentioned in the act, strictly within the appropriate bounds of a physician's professional practice, and not to extend it to include a sale to a dealer, or a distribution intended to cater to the appetite or satisfy the craving of one addicted to the use of the drug. A "prescription" issued for either of the latter purposes protects neither the physician who issues it, nor the dealer who knowingly accepts and fills it. Webb v. United States, 249 U. S. 96, 63 L. ed. 497, 39 Sup. Ct. Rep. 217. [195] Errors assigned to the instructions given and refused to be given by the trial judge to the jury are disposed of by what we have said. · terminal company. terminal 1. An agreement between railway companies entering a city for the purchase, construction, and maintenance of terminal facilities at the joint expense of the railway companies, to be held and used in common, followed by the incorporation of a its powers in accordance with the terms company which was to exercise all and spirit of such agreement, the conveyance to it of all the terminal properties by deeds absolute in form, and the issuance of stocks and bonds in payment, establish a trust under which the terminal company title, but without beneficial ownership, subwas vested, as trustee, with complete legal ject to the duty to maintain and operate the property and exercise all its corporate powers for the common use and benefit of the proprietary railway companies. [For other cases, see Trusts, I. b, in Digest Sup. Ct. 1908.] Trusts creation form. sential to create a trust, provided there be vesting legal title 3. If the subject of a trust be a legal interest in property, and capable of legal transfer, the trust is not perfectly created unless the legal interest be actually vested in the trustee. But a single point remains,-hardly requiring mention, the refusal to permit defendant's wife to testify in his behalf. It is conceded that she was not a competent witness for all purposes, a wife's evidence not having been admissible at the time of the first Judiciary Act [September 24, 1789, 1 Stat. at L. 73, chap. 20], and the relaxation of the rule in this regard by § 858, U. S. Rev. Stat., Comp. Stat. § 1464, 9 Fed. Stat. Anno. 2d ed. p. 1421, being confined to civil actions. Logan v. United States, 144 U. S. 263, 299-302, 36 L. ed. 429, 441-443, 12 Sup. Ct. Rep. 617; Hendrix v. United States, 219 U. S. 79, 91, 55 L. ed. 102, 106, 31 Sup. Ct. Rep. 193. But, it is said, the general rule does not apply to exclude the wife's evidence in the present Note. As to relation of officers of case, because she was offered not "in be- corporations and their dealings with half of her husband," that is, not to prove corporate property-see notes to Mehis innocence, but simply to contradict the Gourkey v. Toledo & O. C. R. Co. 36 testimony of particular witnesses for the L. ed. U. S. 1079; Koehler v. Black government who had testified to certain River Falls Iron Co. 17 L. ed. U. S. 340. matters as having transpired in her pres- As to estoppel by declarations or ence. The distinction is without sub-conduct-see note to Keokuk & W. R. stance. The rule that excludes a wife Co. v. Scotland Co. 38 L. ed. U. S. 458. from testifying for her husband is based upon her interest in the event, and applies irrespective of the kind of testimony she might give. The judgment under review is affirmed. [For other cases, see Trusts, I. b, in Digest Sup. Ct. 1908.] As to ratification by corporation of unauthorized contract entered into by officer by acceptance and retention of benefits-see note to Weathersby v. Texas & O. Lumber Co. 7 A.L.R. 1446. various instru- Estoppel taking title with notice of adverse claim. 4. It is not necessary that the trust be expressed in the same instrument that transfers the title to the trustee. Various instruments may be read together in order to ascertain the intention to establish the trust. [For other cases, see Trusts, I. b. In Digest Sup. Ct. 1908.] Trusts modification time limit. 5. A working agreement between a terminal company and the proprietary railway companies which had created it to carry out a trust to maintain and operate the terminal property, and exercise all its corporate powers for the common use of the railway companies, at their joint expense, which agreement fixed the terms upon which the terminal property should be managed and the terminal services performed for a specified term of years, and provided for the allotment of the stock of the terminal company to the proprietary companies,-did not set aside the trust, or place a time limit upon it. [For other cases, see Trusts, I. e, in. Digest by conduct. 6. A railway company which, with other companies entering a city, had created a terminal company to carry out a trust to maintain and operate the terminal property and exercise all its corporate powers for the common use and benefit of the proprietary railway companies, is not estopped to deny that certain officers and directors of the terminal company, who, for a valuable consideration, purchased stock in such company from a purchasing committee (the trustees for the bondholders of such railway company), acquired a substantial and valuable interest in the terminal company, although such committee, in afterwards making a report to the directors of the railway company, with an account of their financial transactions, included their receipts from the sales of stocks and bonds of the terminal company, and the directors approved the account, where the intent of the committee, known and assented to by the purchasers at the time, was merely to enable the latter to sell to some railway company capable of participating in the use of the terminal. [For other cases, see Estoppel, III. b, 1, in 7. Officers and directors of a terminal company which was created by certain railway companies entering a city to carry out a trust to maintain and operate the corporate property, and exercise all its cor: porate powers for the common use and benefit of the proprietary railway companies to whom was apportioned all the terminal company's capital stock, could only purchase such stock subject to all qualifications arising out of such trust that pertain to the property and franchises of the terminal company. [For other cases, see Trusts, II. b, in Digest Sup. Ct. 1908.] 8. A railway company which, as the Digest Sup. Ct. 1908.1 ficers. powers of executive of 9. Authority in the executive officers of railway companies to assent to changes in the charter of a terminal company which materially affect the property interest of the companies in a matter so vital as the ownership and control of an important terminal is not to be implied as coming within the general scope of their duties, especially where their action was taken under the mistaken impression that it was merely making the charter conform to the situation already actually existing, while, in fact, such amendments, if given effect according to their terms, materially change the situa tion, to the disadvantage of the proprietary companies, by putting an end to an important trust, contrary to their actual intent as parties beneficially interested. [For other cases, see Corporations, V. b, in Digest Sup. Ct. 1908.] Trusts trustees 10. It would require a clear case to warrant a court of equity in declaring that the trustees of an express trust, in the very course of their administration of the trust, had acquired a dominant interest in the trust property, and in effect a discharge of the trust, through mere inattention or even negligence, not raising an estoppel or amounting to laches, on the part of the parties beneficially interested, or their executive officers. [For other cases, see Trusts, I. e; II. b, in 12. Proprietary railway companies whose predecessors have been adjudged to have created a terminal company to carry out a trust to maintain and operate the terminal property, and exercise all its cor porate powers for the common use and benefit of the railway companies, are entitled to have surrendered for cancelation a majority stock interest in such terminal company, acquired by persons who were and still are acting in a fiduciary relation to the trust, and, until surrendered, to an injunction against any sale, assignment, or transfer of such stock, or any part of it, and against the exercise of any voting power thereon, but upon terms that the railway companies shall repay to such stockholders the amount which they paid for the stock, with interest. [For other cases, see Judgment, II. a Injunction, I. c, in Digest Sup. Ct. 1908.] Trusts right of beneficiaries — acprofits. counting 13. Rents, switching, and other terminal charges which a terminal company created by certain railway companies to carry out a trust to maintain and operate a terminal property and exercise all its corporate powers for the common use and benefit of the proprietary railway companies received from outside railway companies and others should be credited to the proprietary railway companies upon a wheelage basis, the trust agreement providing that, in making up the net cost of maintenance and opera tion chargeable to the proprietary lines on a wheelage basis, there shall be deducted the amount, if any, which other railway companies may be under obligation to pay by virtue of contracts for the use of said property or parts thereof. [For other cases, see Trusts. III. a; Accounting, in Digest Sup. Ct. 1908.] [Nos. 66 and 67.] Argued March 23 and 24, 1920. Decided December 6, 1920. CROSS WRITS of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit to review a decree which modified a decree of the District Court for the Southern District of Iowa in a suit to establish a trust. Decree reversed in No. 66 and affirmed in No. 67, and cause remanded to the District Court for further proceedings. See same case below, 166 C. C. A. 289, 254 Fed. 927. The facts are stated in the opinion. Messrs. Robert J. Cary and Burton Hanson argued the cause, and, with Messrs. John C. Cook, Winslow S. Pierce, Lawrence Greer, and F. C. Nicodemus, Jr., filed a brief for the Chicago, Milwaukee, & St. Paul Railway Company et al.: Under the terms of the trust the status of the proprietary companies was as follows: (a) With respect to the premises subject to the trust, the equitable interest of each was that of proprietorship, equivalent to an estate in fee in real property. Brown v. Fletcher, 235 U. S. 589, 59 L. ed. 374, 35 Sup. Ct. Rep. 154; Pom. Eq. Jur. 4th ed. § 975. (b) With respect to each other, they held equitable estates in a tenancy in common. Pom. Eq. Jur. 4th ed. § 147. The transfer of terminals to the Des Moines Company, except as trustee of the proprietary companies, would dismember the railway lines of the latter and cut them off from their entrance to the city of Des Moines. It is settled law that such alienation of property and franchises is ultra vires. Central Transp. Co. V. Pullman's Palace Car Co. 139 U. S. 28, 35 L. ed. 59, 11 Sup. Ct. Rep. 478; Northern P. R. Co. v. Ely, 197 U. S. 1, 49 L. ed. 639, 25 Sup. Ct. Rep. 302; Northern P. R. Co. v. Townsend, 190 U. S. 267, 47 L. ed. 1044, 23 Sup. Ct. Rep. 671; State v. Central Iowa R. Co. 71 Iowa, 410, 60 Am. Rep. 806, 32 N. W. 409; Connor v. Tennessee C. R. Co. 54 L.R.A. 687, 48 C. C. A. 730, 109 Fed. 931. The Des Moines Company is a railway company, and not a terminal company, and its railway lines are not open to use by connecting carriers as a matter of right. Morgan v. Des Moines Union R. Co. 113 Iowa, 561, 85 N. W. 902; Chicago, M. & St. P. R. Co. v. Iowa, 233 U. S. 334, 58 L. ed. 988, 34 Sup. Ct. Rep. 592; State v. Chicago, M. & St. P. R. Co. 152 Iowa, 321, 130 N. W. 892. The transactions should receive a construction which would sustain rather than invalidate them. Hobbs v. McLean, 117 U. S. 567, 576, 29 L. ed. 940, 943, 6 Sup. Ct. Rep. 870. The series of acts and circumstances through which, in the majority opinion of the court of appeals, the proprietary companies are supposed to have gradually let slip from them the exclusive ownership and control which they had at the beginning so much valued and so |