75 Pa. Super. 510 | Pa. Super. Ct. | 1921
Opinion by
The question presented by the appellant is, “whether an osteopathic physician duly licensed by the Oste
The court charged in part as follows: “The defendant comes before you with the presumption of innocence. Unless you are convinced beyond a reasonable doubt that he practiced medicine, held himself out as a physician, investigated the causes of the diseases of patients, and prescribed for their care, drugs or medicines as commonly done by physicians, he must be acquitted; if you are convinced beyond a reasonable doubt that he practiced medicine and did not treat patients whose testimony you have heard, in accordance with the practice of osteopathy, you will be justified in convicting him.” This would seem to give the defendant every right that he was entitled to. It left the criterion of his right to practice the subjects taught and practiced in colleges of osteopathy and the jury having found against him, unless some other error appeared in the trial the judgment must be affirmed.
The second and third assignments were abandoned at the argument.
The only remaining assignment is, that the court erred in not directing a verdict for the defendant. The only support for this would be that since all the doctors called testified that osteopathy as taught and practiced includes the administration of drugs, the jury should have been instructed to acquit the defendant. The jury was not bound to believe the statements of these gentlemen. As is pointed out by the court in its opinion on the motion for a new trial, “The testimony of the witnesses called for the defense was evasive, and they exhibited reluctance to commit themselves to recognition of drug administration as part of the theory and the practice of osteopathy. The limit to which they were willing to go was the assertion that toxicology, materia medica, and therapeutics, and the subjects taught in medical schools were also taught at the osteopathy college; and that in practice drugs were at times administered in conjunction with osteopathic treatment.” It therefore remained for the jury to decide whether their narratives wer,e truthful, and if they disregarded them, there is no reason to set aside their action: Com. v. Holgate, 63 Pa. Superior Ct. 246.
When the Act of 1909 provided that the license issued under its provisions shall authorize the holder to practice osteopathy as taught in colleges, we must not lose sight of the fact that the thing to be taught is “osteopathy.” There is a clear indication that the legislature did not intend osteopaths to administer medicine for in the subjects enumerated for examination, materia medica, and therapeutics are not included. It might be possible if the defendant’s theory be correct, that an osteopath could receive a state license and administer drugs for the cure of diseases without ever having had any instruction in these particular branches, or any test of his knowledge of the same. The subject of the act is osteopathy. The title to be used by licensees is distinct from the title accorded one who is licensed generally to practice medicine. As was said by the learned trial judge in the opinion which we have already in part quoted, “Osteopaths are empowered to diagnose and treat diseases by employing osteopathy. Their privileges are not affected by the acts relating to the practice of
It was said in State v. Bonham, 161 Pac. Rep. 377, 379: “We think, that the framers (of the statutes) regarded the practice of medicine and surgery and the practice of osteopathy, as separate and distinct methods of treating the sick and afflicted and intended to confine the practitioners of each to the particular system he professed to practice; in other words, the system in which he had been educated.”
This has been the view held in all the cases to which our attention has been called, but as we have stated before, the question of defendant’s guilt under the indictment was submitted to the jury and every right was accorded him of having the jury pass upon the question as to whether he practiced medicine in violation of the Act
The judgment is affirmed, and it is ordered that the defendant, appellant, appear in the court below at such time as he may be there called, and that he be by the court committed until he has complied with the sentence.