115 N.Y.S. 374 | N.Y. App. Div. | 1909
Lead Opinion
Section 153 of the Public Health Law (Laws of 1893, chap. 661, as amd. by Laws of 1895, chap-. 398, and Laws of 1905, chap. 455) provides that “any person who shall practice medicine under a false or assumed name, or who shall falsely personate another practitioner of a like or different name, shall be guilty of a felony.” The indictment alleges that the defendant had been convicted at the Court of'Special.Sessions of practicing medicine without lawful authorization and registration; and then, as and for a'second offense, the indictment alleges that the defendant having been theretofore convicted of the unlawful practice of medicine afterwards, to wit, on the 26th of February, 1906, in the city and county of Hew York “ did practice medicine under a false and assumed name, to wit, the name Doctor Dale, by then and there under such false and assumed name, feloniously examining, treating and' prescribing for one Eliza Howard as a physician.” Upon the trial Eliza Howard was called as a witness and testified that on February 26s 1906, she went to the residence of the defendant; that the name “ Dr. Dale ” was on the door bell and a “ Dr. Dale ” sign in the window; that she rang the bell and a woman opened the door; that she asked for Dr. Dale and was told that he was busy
The indictment charged a practicing of medicine with a particular individual on a particular date under a false name. There is nó charge in the indictment that the defendant habitually practiced medicine under an assumed name or at any ■ time except that specified in the indictment and in relation to the person there named. The defendant is charged with this one specific offense. If that act was a crime his relations to the other two witnesses, one more than
The exceptions to the general rule that in order to' prove the guilt of a person charged with a crime it is not permitted to show his former character or to prove his guilt of other crimes are stated in People v. Molineux (168 N. Y. 264, 293). The only one of these
Without passing upon any of the other questions in this case I think, for this reason, the judgment must be reversed and a new trial granted.
McLaughlin and Laughlin, JJ., concurred; Clarke and Scott, JJ., dissented.
Dissenting Opinion
■I dissent. The statute under which the defendant was indicted, section 153 of the Public Health Law (Laws of 1893, chap. .661, as amd. by Laws of 1895, chap. 398, and Laws of 1905, chap. 455), provides as follows: “Any person who shall practice medicine under a false or assumed name, or who shall falsely personate another practitioner of a like or different name, shall be guilty of a felony.” .
While it is true that the indictment alleges a specific offense upon a specified day and with a specified person, the gravamen of the charge is the practicing of-medicine under a false or assumed name, or the falsely personating another practitioner. It seems, to me that the advertisement in the public prints over the name of “ Dr, Dale,” as practicing at the office where defendant was found answéring to said name arid examining and diagnosing the condition: of the complainant and offering treatment for a price, permitted evidence of other like transactions. The continued advertisement in-the papers inviting various persons to the same office for medical treatment by the same man, under the same impersonation, furnishes a connection between the various occasions which permits evidence thereof upon the ground of a common intent and design, the offense charged . being the fraudulent practicing of medicine.
Practicing medicine under a false name is a fraud denounced by the statute. In Regina v. Rhodes (1 Q. B. Div. [1899] 77), Rhodes was convicted of obtaining eggs by false pretenses. He had advertised for new laid eggs in the country newspapers, giving no name except that of Norfolk Dairy Harm. It was shown that he had no right to this name. Subsequent transactions to that testified to by the-complainant, under similar conditions, had been admitted in evidence. Lord Russell, Ch. J., considering the admissibility of this
What the statute seeks to prevent is fraudulent impersonation of a medical practitioner. I think the evidence admissible because it tended to show such fraudulent impersonation continuing over a period of time. The like transactions were bound together by the advertisements during that period for which the defendant was responsible.
I think the judgment should be affirmed. ■
Scott, J., concurred.
Judgment reversed and new trial ordered. Settle order on notice.