148 N.Y.S. 708 | N.Y. App. Div. | 1914
Lead Opinion
The complaining witness testified that she went to the office of the defendant on an upper floor of an office building known as the Brunswick Building, 225 Fifth avenue, and that upon the door of his room was “Willis Vernon Cole, Christian Scientist.” There were a number of men and women there, coming and going. She asked the defendant if he was Dr. Cole. He stated he was Mr. Cole, a Christian Science healer.
“After he gave [me] this second treatment * * * I said to this defendant, ‘How can you cure locomotor ataxia?’ He said, ‘ Just by prayer and having faith in God.’ * * * He said, ‘ When patients are given up by physicians they always turn to Christian Science for help.’ * * * He said he could cúre * * * locomotor ataxia by Christian Science.” She came back again on the twenty-third of January. “ He said, ‘You are looking very well.’ I said, ‘I removed the plaster . that was on my back as you told me to.’ And he said, ‘ I want you also to remove the glasses.’ I says, ‘I have to keep the glasses on.’ * * * I said to Mr. Cole that when I eat bread and potato, I would distress my stomach very much. He said, ‘ Leave your stomach alone; you go home and eat anything you want to, if you keep bothering your stomach.’ * * * He said, ‘ I can cure that by Christian Science.’ * * * I said that I was suffering from delayed menstruation. * * * He said, ‘ I am glad you spoke about it as it is all one cause, but I can cure it.’ * * * He said, ‘I will give you a treatment.’ And the treatment was exactly like the treatment before.” The last time she brought her little child ten years old who was in the habit of wearing glasses. “I said to Mr. Cole that the child has been wearing glasses and she also has a cold. I said, ‘ Can you cure her by Christian Science ? ’ And he said, ‘Absolutely.’ I said, ‘Well, will you cure her?’ And he replied, ‘ Absolutely.’ So I said that the child had a pah’ of roller skates, and wearing glasses, why, if she should fall she would injure herself. And he said, ‘You take the glasses off and let the child run and romp like other children; that mothers should not put such fear in children. ’” “ He said: ‘ I will give the child a treatment and you a treatment.’” “Before he started the treatment he said, ‘ What is the child’s first name ? ’ And I said, ‘Lucille.’ Then closed his eyes and gave the treatment.”
“ Q. What did he say whenhe took his hands down and opened his eyes ? A. He said that was enough for to-day. I then said to the defendant, ‘ How is it that you cure cancer ? ’ He said, ‘ By prayer.’ I said I had a friend who was suffering from
On cross-examination:
££q. -x- * * You have said in response to interrogatories on your direct examination, that Mr. Cole said, * * * I will cure this, that and the other. Did not Mr. Cole tell you on your first visit and reiterate it on subsequent visits, that he had no power in and of himself ? A. He said he did not have any power. * * * Q. That you had every bit of power that he had, did not he ? A. Yes. Q. That you could heal as well as he if you would study the Bible and rely upon its promises, and offer the prayer of understanding and faith ? * * * A. Yes, sir. * * * Q. That when Mr. Cole had explained to you that he had no power in himself, that all power came from (j-od, and that you had every particle of power that he had, and that what you needed was faith in the Almighty, you understood by that that if he said £ I can do this, ’ or £ do that, ’ £ I can cure,’ that it was through this means of prayer, did not you ? A. Through Almighty God. * * * Q. In one of your statements * * * you stated in effect, did you not, that all diseases look alike to a Christian Scientist ? — that he said that \ A. Yes. Q. That Mr. Cole told you that ? A. That Mr. Cole said that all diseases were alike. * * * Q. As a matter of fact * * * did not Mr. Cole explain to you that it was the teaching of the Bible and of Christian Science that God healed all diseases, and that He was the Great Physician, and that if you would be good and pure and honest and come to Him in sincerity and truth and ask Him for this power, that it would be given to you % A. Well, he said something very similar to it. * * * Q. He told you, did he not, that there was nothing mysterious about Christian Science, that you could learn all that he knew ? A. Yes, sir. Q. He even went so far as to ask you, to suggest that you buy the book and study it in connection with the Bible ? A. Yes, sir. Q. And then you would know how to cure yourself and how to remain cured and well ? A. Yes, sir. * * * Q. Did Mr. Cole look at your tongue ?
The defendant testified that he had been for eight years an authorized practitioner of the Christian Science church and that he had maintained his office in the Brunswick Building for five years in May; that when he received his first knowledge of Christian Science he was a sculptor, and a poet; that he had never studied medicine in any way; that his average income from his practice was about $5,000 or $6,000; that he did not ask people money for treating them. When they tendered it he took it.
“ Q. Is it or not one of the rules of the Church ? A. I don’t say there is any definite rule, but it is a practice to treat all who are honest and sincere whether they can pay or not, and that is a rule, we are to help every one. ”
He testified that he remembered the occasion on which the complaining witness called on him.
“ Q. You remember the people who were in the office when
Defendant’s account of the first interview with the complaining witness was as follows: ‘‘ She sat about four feet away from me, facing me. She told me that she had come to be treated for trouble with her eyes and stomach trouble. I informed her that Christian Science treatment was prayer to God, we did not believe in drugs, medical treatment, any thing like that, and she asked me to give her treatment. Something was said in regard to the basis of Christian Science, and I told her substantially that Christian Science was the truth about God, and the truth about man and the truth about man’s relationship to God and the truth of his birth-right as a result of this relationship, which is the foundation of what we teach, and I told her that on this basis disease was no part of her birth-right, or inharmony, and when she realized her oneness with God, and got in harmony with God that this was the treatment and was what we would do. She sat there for about 15 minutes. I covered my face with my hands, or sat with my head partially bowed for fifteen minutes * * * in prayer to God. * * * Mrs. Benzecry asked me how much I charged for treatment and I told her it was customary to pay $2 for the first treatment and one dollar for any other treatments, and she paid me two dollars. ” At another interview ‘ ‘ she asked me if she should — spoke to me about taking off her glasses, and I said to her, ‘them is no reason that you should not take off your glasses. I took off mine and had been wearing them for years, ’ and I then started to tell her about the work and practice of Christian Science. * * * I told her I had trouble with my eyes and had several other diseases and that I had been to a number of physicians, and that I had been healed by Christian Science. * * * I told her that Christian Science treatment was prayer to God. I told her that Christian Science realized that God was omnipotent, or all-powerful, that He was omniscient, or all-knowing; that He was omnipresent, or ever-present; and that because God was omnipotent and omniscient and omnipresent and God was good, that it must follow that evil, disease, inharmony, sin and discord were
Under cross-examination:
“ Q. Now you had an office andin that office, as I understand, you held yourself out as being able to treat human diseases through the medium or by the means of the Christian Science doctrine of religion, is that correct ? A. Through prayer to God, yes. Q. That is the means by which you held yourself out as being able to treat human diseases; is that correct ? A. It is incorrect. * * * It is incorrect on this basis, that Christian Science does not recognize disease as a reality. * * * The patients that come to us to be treated for sin and disease and other inharmonious, similar inharmonious conditions, are treated for those through prayer to God, and it is the function of the Christian Science practitioner to offer this prayer to God. Q. You don’t answer my question at all. Your office was a place in which you held yourself out as being able to treat those people that came to you for sin or disease by the means [or] method that you thought was efficacious, was that correct ? A. By the means of prayer to God. Q. And that is the means that you considered efficacious ? A. Yes. Q. And you held yourself out as being able to treat them by those means or by that method, is that correct ? A. To pray to God for them. * *, * Q. I am taking now their state of mind, certain people resorted to your office for the purpose of being treated for sin or disease, is that correct ? A. It is correct. Q. And you used your office as a place where you held yourself out as being able to treat them for what they came to you by the methods you bhought were efficacious ? A. Through prayer to God, yes.”
He stated that he would have above 2,500 and 3,000 calls a year at his place. The number of calls were considerably over 3.000 to his best belief.
“And did you treat all patients that came substantially by the same method and in the same way, * * * all these 3.000 people by the same method of treatment? A. If you
A number of concessions were made on the trial; that Christian Science is a religion based on the scriptures, founded by Mary Baker Eddy in 1866. It is based on the Christian religion. That Mrs. Eddy’s interpretation of the scriptures, which she named Christian Science, is set forth in a book entitled “ Science and Health with Key to the Scriptures,” first published in 1875, and is the Christian Science text book; that Mrs. Eddy founded a church to represent the Christian Science denomination at Boston, Mass., in 1879, and that this church, known as the First Church of Christ, Scientist, soon became the parent organization of the Christian Science denomination, with local churches, known as branches to the Mother Church, situated in cities and towns throughout the world. Christian Science congregations and churches began to be formed and organized in the State of New York between the years 1885 and 1890, and in May, 1907, there were in the State of New York 72 Christian Science churches, and there are now 80 or more of these churches in this State; that there were in May, 1907, the date of the passage of this law, about 1,000 Christian Science churches situ
Prior to 1907 the statute (Public Health Law [Gen. Laws, chap. 25; Laws of 1893, chap. 661], § 153, as amd. by Laws of 1895, chap. 398, and Laws of 1905, chap. 455) provided as follows: “Any person who, not being then lawfully authorized to practice medicine within this State and so registered, according to law, shall practice medicine within this State without lawful registration, * * * shall be guilty of a misdemeanor. ”
In People v. Allcutt (117 App. Div. 546; affd., 189 N. Y. 517) and again in People v. Mulford (202 id. 624, affirmed on its authority) this court refused to accept Smith v. Lane as authority on the subject, saying: “We do not consider the remarks of the learned judge, above quoted, as being an exhaustive or exclusive definition of the term ‘practice of medicine.’” “To confine the definition of the words ‘practice medicine ’ to the mere administration of drugs or the use of surgical instruments would be to ehminate the very cornerstone of successful medical practice, namely, the diagnosis.” That case was decided in February, 1907.
In May, chapter 344 of the Laws of 1907 was passsed which repealed article 8 of the Public Health Law and provided a substitute therefor. Section 1, relating to “Definitions,” m subdivision 7, provides as follows: “The practice of medicine is defined as follows: A person practices medicine within the meaning of this act, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate, or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate, or prescribe for any human disease, pain, injury, deformity, or physical condition.” That definition is' the same as that found in section 160, article 8, of the Public Health Law (Consol. Laws, chap. 45; Laws of 1909, chap. 49), with the change of the word “ act ” to “ article.” Section 2, or, as it now is, section 161, provides: “Qualifications. Ho person shall practice medicine, unless registered and legally authorized prior to September first, eighteen hundred and ninety-one, or unless licensed by the regents and registered under article eight of chapter six hundred and sixty-one of the laws of eighteen hundred and ninety-three and acts amendatory thereto, or unless licensed by the regents and registered as
Section 166 provides for the “Admission to examination; ” section 167, “ Questions. The board [meaning the board of examiners] shall submit to the regents, as required, lists of suitable questions for thorough examination in anatomy, physiology, hygiene, sanitation, chemistry, surgery, obstetrics, gynecology, pathology, including bacteriology, and diagnosis; ” section 169, “Licenses;” section 170, “Registry; revocation of license; annulment of registry; ” section 172, “Certificate presumptive evidence; unauthorized registration and license prohibited; ” section 173, “ Construction of this article. This article shall not be construed to affect commissioned medical officers serving in the United States army, navy or marine hospital service, while so commissioned; or any one while actually serving without salary or professional fees on the resident medical staff of any legally incorporated hospital; or any legally registered dentist exclusively engaged in practicing dentistry; or any person or manufacturer who mechanically fits or sells lenses, artificial eyes, limbs or other apparatus or appliances, or is engaged in the mechanical examination of eyes, for the purpose of constructing or adjusting spectacles, eye glasses and lenses; or any lawfully qualified physician in other States or countries meeting legally registered physicians in this State in consultation; or any physican residing on a border of a neighboring State and duly licensed under the laws thereof to practice medicine therein, whose practice extends into this State, and who does not open an office or appoint a place to meet patients or receive calls within this State; or any physician duly registered in one county called to attend isolated cases in another county, but not residing or habitually practicing therein; or the. furnishing of medical assistance in case of emergency; or the domestic administration of family remedies; or the practice of chiropody; or the practice of the religious tenets of any church. * * * ”
Section 174. “Penalties and their collection. Any person who, not being then lawfully authorized to practice medicine
Therefore this act for the first time clearly defines by statute the phrase, “ the practice of medicine. ” The definition is broad enough to cover the acts of the defendant, because he “holds himself out as being able to * * * treat * * * any human disease,” and he did “ undertake * * * to -x- * * treat.” The language of the statute is “by any means or method.” This covers the means or method used by him. While he denied the material existence of disease and said it was merely mental, yet he undertook to treat people he called patients for what they told him was the matter with them; in other words, what they thought were diseases. He had an office for that purpose — he received fees therefor — he habitually terms what he did his “treatment.” He conducted a pecuniarily successful business. He called himself a practitioner, but admitted that the popular phrase was healer. Whatever the believers in Christian Science may think about disease, the law regards it as a fact. It requires the vaccination of children; it requires the examination and quarantine of children admitted to institutions, and a certificate whether the child has diphtheria, scarlet fever, measles, whooping cough or any other contagious or infectious disease, or any hereditary or other constitutional disease. (See Public Health Law, §§ 310, 313.) In section 320 of the Public Health Law it provides: “ Tuberculosis is hereby declared to be an infectious and communicable disease, dangerous to the public health. * * *.”
The one question presented here is whether the defendant is permitted to do what he has done under the clause of the statute (§ 113): “ This article shall not be construed to affect * * "x" the practice of the religious tenets of any church.”
Is the commercialized use of prayer for the avowed purpose of treating all persons seeking cure for all kinds of bodily ills the practice of the religious tenets of a church ?
la. People v. Mulford (140 App. Div. 116; affd., 202 N. Y. 624), affirming the conviction of the defendant of the crime of
In State v. Peters (87 Kans. 265), decided in Hay, 1912, the defendant was also a practitioner of Suggestive Therapeutics. The appellant explained, his practice thus: “First had my attention called to healing people about twenty-five years ago from the study' of the Bible. I supplemented that study by different branches. I have religious beliefs as to healing. I believe that the words of Jesus Christ in regard to healing can be carried out now just the same as they ever could. I believe from my study of the Bible and my supplemental study that I can carry out to some extent the healing as by Him practiced. Hy conviction is that I can do the work and ought to»do it and this has been my belief during the past three years and it is my conviction that it is a duty I owe and must perform it. Hy supplemental studies have been psychology and suggestive therapeutics. I have studied the Weltmer system of suggestive therapeutics.”
The president of the Weltmer Institute testified: “ The fundamental principle in suggestive therapeutics is that the movement of the mind is the remedy in healing. Mind is both finite and infinite intelligence which governs all physical and mental actions, conscious and unconscious. Thinking is the mind’s mode of acting. Then thought is a movement of the mind. Whatever other method is used is for the purpose of starting the mind of the patient into a state of activity in wldch the vibrations of his own mind will change the cell vibrations of his body. A movement of the mind that would have in it the constructive idea of replacing diseased tissue with healthy tissue, would be a therapeutic thought. Any
The Kansas statute provided that any person shall be regarded as practicing medicine who represented “that he is authorized to or does treat the sick or others afflicted with bodily infirmities, but nothing in this act shall be construed as interfering with any religious beliefs in the treatment of diseases.” (See Kansas Gen. Stat. 1909, § 8090.)
In affirming the conviction the court said: “The appellant was regularly engaged in soliciting, receiving and treating patients for bodily infirmities, for fees charged and collected. This is within the statute. * * *
“The claim of the appellant that he only practiced a religious belief within the exception which declares that nothing in the act shall be construed to interfere with any religious beliefs in the treatment of diseases cannot be sustained. The only basis for this claim is the appellant’s testimony that he believed the words of Jesus in regard to healing; that from Bible study and supplemental study of psychology and suggestive therapeutics he believes that he can carry out this healing practice to some.extent, and that it is his duty to do so. Still the fact remains uncontradicted that he diagnosed diseases and treated patients in a matter-of-fact way by manipulations and rubbing. He was thus treating people as a business for compensation by outward physical means, and was not engaged merely in a religious observance, or, as counsel say, (practicing a religious belief.’ The place and value of suggestion in the treatment of diseases need not be discussed, for, apart from this, the appellant engaged in the practice requiring an examination and certificate under the statute, -x- -x- * The medical practitioner may entertain any belief his conscience approves, but this will not excuse him from a failure to observe the laws of the State regulating the calling in which he is engaged.”
In Smith v. People (51 Colo. 270), decided April, 1911, defendant was convicted for “ Practicing medicine without a license.” The statute defined the “ Practice of Medicine ” to be holding
The court said: “ The people’s evidence shows that defendant kept a place of business for healing the sick * * * that there were signs in the windows reading: ‘Professor Smith, Healer,’ ‘ Office hours 9 to 12, 2 to 6; ’ a sign on the door reading ‘Professor Smith, Healer.’ ‘Walk in.’ * * * He claimed his treatment was a natural one — a gift from the Almighty; claimed to restore people to health; said he could cure any disease a medical man could, and many they could not; could cure diarrhoea, and stomach, spinal, nervous and throat troubles, and pneumonia; mentioned several cases of pneumonia he had recently cured that doctors had given up; said he diagnosed his cases and treated them without medicine.
“ Defendant testified that he belonged to the church of ‘ The Divine Scientific Healing Mission,’ a corporation; that he was a preacher of the gospel, and a healer of the sick; held services Sunday afternoons at Howe Hall, where he preached and cured the sick; said his church had branches everywhere; he occupied a couple of living rooms, not an office, where he lived and treated the sick and afflicted without the use of drugs or a knife; some he charged, some he did not; never turned any one
“ It is the nature of defendant’s business, not the objects of the corporation or the tenets of his church, that is in controversy. The evidence shows he was practicing medicine within the definition of the statute, and was using the title ‘ Healer,’ to his name, to indicate that he was engaged in the business of healing the sick. He treated in his office or place of business, for hire, persons suffering from disease, for the purpose of curing them. He held himself out to the public as a professional healer of diseases, and a practitioner of the healing art. The statute lays hands on commercial healing as a money making occupation, business or profession, regardless of the method of treatment or curative agency employed. It concerns the public health, and should be liberally construed to accomplish the object of its enactment. * * *
“Defendant claims he comes within the exemption which says: ‘ Nothing in this act shall be construed to prohibit * * * the practice of the religious tenets or general beliefs of any church whatsoever, not prescribing [s¿c] or administering drugs. ’ The Constitution
In People v. Spinella (150 App. Div. 923;. affd., 206 N. Y. 709) the record in this court shows that the defendant was the head of a church of his own with an altar, candles, crucifix, vestments; that he conducted services, kneeling before the altar, praying and saying the rosary and making the sign of the cross; that he said that he receives his power from the heavens and he invokes the saints, the holy Madonna, the angels and God. His treatment was given in front of the altar. He claimed to have a divine revelation and to have accepted the power to perform miracles over sickness, and held himself out as curing all sorts of diseases through miraculous power. Witnesses testified that they attended his church, and had been benefited and cured by him. Upon the appeal counsel squarely raised the point that defendant’s acts had been done in the practice of the religious tenets of a church and invoked the exception contained in section 173 of the Public Health Law, but his conviction was unanimously affirmed by this court and by the Court of Appeals.
State v. Buswell (40 Neb. 158) was the case of a Christian Scientist. The opinion states fully the defendant’s testimony as to his belief. The court said: The defendant claimed that “to hold that the practices of the defendant are a violation of the law, would be to abrogate section 4, article 1, of the Constitution of this State, which provides that all persons have the
After citing certain extracts from the Bible, the court proceeded: “In the light of these instances, cited from defendant’s own authority, it is confidently believed that the exercise of the art of healing for compensation, whether exacted as a fee or expected as a gratuity, cannot be classed as an act of worship. Ueither is it the performance of a religious duty, as was claimed in the district court. * * * Under the indictment, the sole question presented upon the evidence was whether or not the defendant within the time charged had operated on, or professed to heal, or prescribed for or otherwise treated any physical or mental ailment of another. There was
State v. Marble (72 Ohio St. 21) was also the case of a Christian Scientist. The court said: “ The conceded facts are that the defendant did not recommend or prescribe for the cure or relief of Christ Hehl any drug, medicine, appliance, application or operation, but on the contrary that he made no diagnosis or any physical examination, gave him .no directions as to food, diet, exercise or any other directions, nor did he make any inquiry as to the nature of the disease with which he was afflicted. The only thing he did was to offer prayer for his recovery. He was called to see Hehl for rheumatism, but called on him but once, and after that gave him what is among the followers of Christian Science known as absent treatment for one week, and at the end of that time Hehl paid him $5.00 for his services. The defendant did not have a certificate from the State Board of Medical Registration and Examination as required by the statute.
“It is contended that the word ‘ treatment ’ is to be given its meaning as used in the practice of medicine and that as so read it means the application of remedies to the curing of disease, that a remedy is a medicine or application or process; that process is an action or operation and that prayer for the recovery of the sick is neither. * * * If its followers call it treatment they ought not to be heard to say it is not. Dr. O. W. Holmes, Med. Ess., says ‘ Disease is to be treated by anything that is proved to cure it.’ * * *
“ The next contention is that the statute interferes with defendant’s right to worship God according to the dictates of his conscience * * *.
“ But it is said the offering of prayer to God for the recovery of the sick is not against public health or public morals or public safety or public welfare. Admitted. But is that a correct statement of the case ? If the defendant prayed for the recov
The appellant relies upon State v. Mylod (20 R. I. 632), a case of a Christian Scientist. The court there pointed out that the defendant not only did not attempt to treat disease hut he denied its very existence. We considered that case in People v. Allcutt (supra), saying: “In contrast with this last case is People v. Pierson (176 N. Y. 201). Pierson believed in ‘ Divine healing.’ His child had catarrhal pneumonia and died. Pierson did not call in a physician, but believed the child could be cured by prayer. He was convicted under section 288 of the Penal Code for willfully omitting to furnish 'medical attendance ’ to the child.”
In the Pierson case Judge Haight wrote as follows: “ The remaining question which we deem it necessary to consider is the claim that the provisions of the Code are violative of
“We are aware that there are people who believe that the Divine power may be invoked to heal the sick, and that faith is all that is required. There are others who believe that the Creator has supplied the earth, nature’s storehouse, with everything that man may want for his support and maintenance, including the restoration and preservation of his health, and that he is left to work out his own salvation, under fixed natural laws. There are still others who believe that Christianity and science go hand in hand, both proceeding from the Creator; that science is but the agent of the Almighty through which
In the case at bar this court has no right, and does not presume, to pass upon the faith, belief or religious tenets of the Christian Scientists or the efficacy of the methods of their practitioners in treating disease or error. Its sole’concern is whether upon the facts proven the defendant was properly convicted of practicing medicine without being licensed and registered, and whether the conceded acts come within the exception as the practice of the religious tenets of any church.
Tenet is defined by the Century Dictionary as “ any opinion, principle, dogma, or doctrine which a person, school or sect holds or maintains as true.” A man’s right to hold and express such is unquestioned. But when he advances from the realm of thought to that of action, he must obey the law.
In Watson v. Maryland (218 U. S. 176) Day, J., said: “It is too well settled to require discussion at this day that the police power of the States extends to the regulation of certain trades and callings, particularly those which closely concern the public health. There is perhaps no profession more properly open to such regulation than that which embraces the practitioners of medicine. Dealing, as its followers do, with the lives and health of the people, and requiring for its successful practice general education and technical skill, as well as good character, it is obviously one of those vocations where the power of the State may be exerted to see that only properly qualified persons shall undertake its responsible and difficult duties. To this end many of the States of- the Union have enacted statutes which require the practitioner of medicine to submit to an
Upon the foregoing authorities we reach the conclusion that the acts complained of constitute the practice of medicine, were not the practice of the religious tenets of any church, and to authorize the defendant to administer the treatment, which he concedes he did, he must have first been duly licensed and registered in accordance with the provisions of the Public Health Law.
It follows that the judgment of conviction appealed from should be affirmed.
Ingraham, P. J., Laughlin and Hotchkiss, JJ., concurred; Dowling, J., dissented.
See Mills Anno. Stat. Revsd. 1912, § 6856.— [Rep.
See Colo. Const, art. 2, § 4.— [Rep.
See 1-3 U. S. Stat. at Large, 47, chap. 59; Id. 48, § 4, subd. 2.— [Rep.
See Ohio R. S. § 4403 et seq., as amd. by Laws of 1896, p. 44; Laws of 1900, p. 197, and Laws of 1902, p. 212.—[Rep.
Dissenting Opinion
I fully agree with the conclusion reached by Mr. Justice Clarke that the defendant is not protected by the clause of the statute providing that “this article shall not be construed to affect * * * the practice of the religious tenets of any church.” The record, as quoted from in that opinion, clearly shows the commercial phase of the defendant’s activities as distinguished from any religious observance. None of the indicia of worship were present in the defendant’s actions, which were not had in a place of religious worship, nor in any building connected therewith. They were not performed in accordance with the discipline enjoined by his church. They were
Still, as I view this case, and with due respect for the authorities which have been so persuasively presented in the majority opinion, I do not believe the pursuit in which the defendant was engaged was the practice of medicine. So far from that being the case, the record shows that the defendant disavowed any personal ability or power to influence or affect the condition of the person seeking relief, and urged in every possible way the view that God alone, whom he called the “Great Physician,” could cure what was called “disease,” and that those who lived honest, pure and kindly lives would remain well. He emphasized the fact that God was the only healer, and that prayer to God was the only efficacious means for relief. He practiced no deceit, and made no false professions of ability to be of service. He disavowed any mysterious element in his own practices, and told the witness that by reading Mrs. Eddy’s works she could master the means for obtaining relief as well as he had done. Starting with the negation of the existence of disease as a physical fact and following it up with the statement that what is ordinarily recognized as the presence of disease is simply evidence of “a lack of harmonious relation with the Almighty,” he suggested as the only recourse the restoration of a proper spirit of harmony
Under all these conditions I believe that the record does not disclose facts sufficient to justify a finding that the defendant was practicing medicine within the terms of the statute, and that the conviction was, therefore, improperly had and should be reversed.
Judgment affirmed.
Concurrence Opinion
I concur with Mr. Justice Clarke, but I am of opinion that the acts performed by the defendant if performed in a Christian Science church, or in visiting the members of the church or others and so administering to them without charge, would not violate the statute.