46 Neb. 157 | Neb. | 1895
The plaintiff in error was tried in the district court of Lancaster county on a charge of practicing medicine in said county without first obtaining a certificate and filing the same or a copy thereof in the office of the county clerk, and was convicted and sentenced. The information was as follows: ■
“Be it remembered that Novia Z. Snell, county attorney in and for Lancaster county and the third judicial district of the state of Nebraska, who prosecutes in the name and by the authority of the state of Nebraska, comes here in person into court at this, the February term, A. D. 1892, thereof, and for the state of Nebraska gives the court to understand and be informed that one Thomas O’Connor^ late of the county aforesaid, on the 1st day of March, 1892, and thereon continuously until the 28th day of April, A. D. 1892, in said county of Lancaster and state of Nebraska aforesaid, did unlawfully practice medicine without having first obtained a certificate from the state board of health and filing it, or a copy thereof, in the office
“Second Count. — And the county attorney aforesaid, by the authority aforesaid, shows to the court by a second and further count that one Thomas O’Connor, on the 8th day of December, 1891, in the county of Lancaster and state of Nebraska,- did unlawfully practice medicine without having first obtained a certificate from the state board of health and filing it, or a copy thereof, in the office of the clerk of Lancaster county, that being the county in which the said Thomas O’Connor at all times herein mentioned resided and in which he practiced medicine as aforesaid.
“Third Count. — And the county attorney aforesaid, by. the authority aforesaid, shows to the court by a further and third count that one Thomas O’Connor, on the 9th day of December, 1891, and then continually until the 1st day of January, 1892, in the county of Lancaster and state of Nebraska, did unlawfully practice surgery without having first obtained a certificate from the state board of health.and filing it, or a copy thereof, in the office of the clerk of Lancaster county, that being the county in which the said Thomas O’Connor at all times herein mentioned resided and in which he practiced surgery as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska.”
There was a stipulation filed in which it was agreed that the second count of the information was to be ignored and the prosecution to rest upon the first and third counts, and if convicted the sentence was to be for the charge in but one, either the first or third of the counts of the information.
It is contended that there was no sufficient statement of an offense in the information, in that it does not negative
It is further urged that the information contained an insufficient statement of the crime, in that it charged the defendant with unlawfully practicing medicine, etc., on and between certain dates and did not state specifically any facts or acts constituting the crime sought to be charged. Section 17 of the act of 1891, immediately following the section declaring the practice of medicine without possessing the prescribed qualifications, or without having complied with the requirements of the law in regard to the certificate, a misdemeanor, and providing a penalty therefor, defines a practitioner as follows: “Any person shall be regarded as practicing medicine within the meaning of this act who shall operate or profess to heal or prescribe for or otherwise treat any physical or mental ailment of another.” It is claimed that here is a plain definition of what constituted practicing medicine, contained in the act itself, and that the information in this case, in order to sufficiently charge the commission of the crime, should have
Reversed and remanded.