| Mass. | May 15, 1907
This is a complaint under R. L. c. 76, § 8, which makes it a criminal offence for any person to “practice medicine in any of its branches ” without being duly registered. A trial was had before a jury in the Superior Court. A verdict of guilty was rendered. Exceptions taken by the defendant at the trial were seasonably presented to the trial judge and were duly allowed by him. After his death, which soon after occurred, another and fuller draft of the exceptions was presented to another justice of that court, who did not sit at the trial. By the consent of the district attorney this justice made a certificate that he allowed the exceptions if he had the power to do so.
We are of opinion that he did not have that power to allow this second bill of exceptions. R. L. c. 178, § 108 (the only statute material to this inquiry), which provides that in certain cases a judge other than the one presiding at the trial where exceptions are taken may examine and allow the exceptions, is applicable only when the trial judge fails to sign or return them. In the present case there was no such failure; and therefore the exceptions allowed by him are the only ones properly before us.
The record recites that the defendant offered to show by expert evidence that the practice of midwifery was not the practice of medicine in any of its branches in violation of law. The district attorney argues that whether the practice of midwifery is the practice of any branch of medicine in violation of law is a question of law, and therefore not a subject for expert evidence; and that the record is to be interpreted as an offer to introduce expert evidence upon that question of law. But we do not so interpret it. While the offer is brief and not so clear as it might be, yet we understand it to state in substance an offer to prove by expert medical testimony what a midwife does or is expected to do as such, so that the court may see whether her acts or any of them are to be regarded as the practice of medicine in any of its branches; and we understand the phrase, “ in violation of law,” to be simply a statement by the defendant that when this evidence is produced it will appear that such acts are not the practice of medicine in any of its branches.
Upon this interpretation of the record, for this limited purpose, the evidence was admissible. Whether upon such evidence
Exceptions sustained.