86 So. 870 | Miss. | 1920
delivered the opinion of the court.
Dr. E. C. Smythe, appellant, Avas convicted for unlawfully and knoAAdngly violating a rule or regulation of the state board of health, and from the judgment sentencing him to pay a fine and costs he prosecuted this appeal. The affidavit upon Avhich this prosecution Avas based charged that—
“On or about the 1st day of October, A. D. 1919, E. 0. Smythe, being then and there a licensed practicing physician, did, then and there, unlaAvfully and knoAvingly fail and neglect to report to the county health officer of said county AAdiether or not,' during the preceding month., he attended any notifiable diseases as scheduled in section 2 of the rules and regulations of the Mississippi State Board of Health governing infectious diseases and sanitation, contrary to* the rules and regulations of the said Board of Health.”
A certified copy of the rules and regulations of the state board of health governing morbidity reports Avas introduced in evidence. Section 1 of these regulations makes it the duty of the county health officer to secure a report from physicians each month of the diseases named in section 2
Section 2489, Code of 1906 (Hemingway’s Code, section 4838), confers upon the state board of health the power to make and publish rules and regulations, and is as follows:
“The state board of health is authorized to make and publish,all reasonable rules and regulations necessary to enable it to discharge its duties and powers and to carry out the purposes and objects of its creation, and reasonable sanitary miles and regulations, to be enforced in the several counties by the county health officer under the supervision and control of the state board of health.”
The penalty for violating the rules and regulations of the state board of health is set forth in section 2511 of the-Code of 1906 (Hemingway’s Code, section 4860), which is as follows:
“Any person who shall knowingly violate any of the provisions of this chapter, or any rule or regulation of the state board of health, or any order or regulation of the board of supervisors of any county herein authorized to be made, shall be guilty of a misdemeanor, and on conviction shall be punished by fine not exceeding fifty dollars, or imprisoned in the county jail not more than one month, or both.”
There is no merit in the contention of appellant that the rule requiring morbidity reports to be made on the 1st day of each month is unreasonable. The purpose of this regulation is to enable the health authorities to take proper and prompt measures for the prevention and spread of
We think, however, that the testimony in this record is insufficient to sustain this conviction. The offense denounced by the statute is the violation of the regulations of the Board of Health knowingly, and this evidence wholly failed to show that the defendant had any knowledge of the existence of the rule or regulation, or that there had ever been any such publication thereof as to charge him with knowledge of it. The only attempt to show any sort of publication of the rule, or that the defendant had knowledge thereof, is found in the testimony of Dr. R. W. Hall, who was a witness for the state, and who testified that there was in the office of the state board of health a. mailing list consisting of about thirteen thousand names, including about one thousand seven hundred physicians; that the name of Dr. Smythe appeared on this mailing list; and that it was customary to mail the publications of the board to the people whose names appeared on this list. The defendant testified that he had never receivd a copy of these regulations, and that he had no knowledge of the existence of the rule requiring these reports to be made on the first day of the month, and that, prior to the administration of Dr. Á. J. Ware as county health officer, it had been the custom in that county to file these reports on or about the 10th day of the month, and that in so doing the physicians were acting under the directions of the county health officers.
There is no presumption that appellant had knowledge of a mere rule or regulation of the state board of health, and under the evidence in this record the peremptory instruction requested by defendant should have been granted.
Reversed and appellant discharged.
