231 Mo. 1 | Mo. | 1910
The prosecuting attorney of Jackson county began this prosecution on November 19, 1906, by filing the following information in the criminal court of said county.
“Affidavit being filed according to law, now comes Isaac B. Kimbrell, prosecuting attorney for the State of Missouri, in and for the body of the county‘of Jackson, and informs the court that Charles H. Carson, on the-day of May, 1906, at the county of Jackson, State of Missouri, did then and there unlawfully practice medicine and surgery in the said State of Missouri, and did then and there attempt unlawfully to treat the sick and others afflicted with bodily and - mental infirmities, without first obtaining and having a license from the State Board of Health and without being then and there a physician registered according to law, against the peace and dignity of the State. ’ ’
The affidavit on which this information was based was made hy George Creel.
The defendant being arrested, filed his demurrer to the information, which was overruled, and he was then duly arraigned. A jury was waived and the cause tried to the court, and as will hereafter he noted, defendant was found guilty and his punishment assessed at a fine of five hundred dollars. For the reason that
When the information was filed the names of Dr. Adcock and George Creel were indorsed thereon as witnesses.
On the part of the state the testimony tended to prove that in July, 1906, the defendant treated a little boy- six years old, the child of Mrs. W.‘ H. Kemper, for a lame leg. When Mrs. Kemper was offered as a witness defendant objected on the ground that her name was not indorsed on the information, which objection the court overruled. On cross-examination, Mrs. Kemper testified she did not see Mr. Creel until the winter of 1907, long after the mformation was filed, when he came to her home to find out if Dr. Carson had treated the boy and how.
Dr. Adcock’s testimony tended to show that the defendant admitted to him he had treated a case of appendicitis. The patient had been brought to him from Kansas in October or November, 1906. To this evidence defendant duly objected and excepted on the ground it was a distinct offense from the one on which the state relied for conviction in this case and on which it had' elected to prosecute.
At the close of the state’s case the defendant requested the court to acquit him, on the grounds that the mformation did not individuate any offense and did not name any particular person whom the defendant had treated medically, basing his contention on the language of the act, “and treating each patient shall be regarded as a separate offense.”
After the court refused to acquit, the defendant offered in evidence a record kept in the office of the county clerk known as the “Roll of Physicians and
The defendant then read in evidence, after establishing the official character of the officer who issued it and after proving the genuineness of his signature and that the record was kept in the office of the county clerk, the following certificate:
PHYSICIAN’S CERTIFICATE.
Know all men by these presents, that C. H. Carson, a resident of Kansas City, in the county of Jackson and State of Missouri, has this day complied with the requirement of the law of the State of Missouri, entitled, An Act to regulate the practice of medicine and surgery in the State of Missouri; approved April 28, 1877; by filing a copy of a diploma sworn'to by him, duly issued to him on the 2nd day of June, 1879, by the American Health College of Cincinnati, which said college is located- in the city of Cincinnati, State of Ohio, and is duly established under and by virtue of the laws of the State of Ohio. Now therefore the said C. H. Carson is hereby authorized to practice the profession of medicine and surgery in the county of Jackson under and in accordance with the provisions of said act.
In testimony whereof I have hereunto set my hand and affixed the seal of the county court of said county at office in the city of Independence, this 15th day of May, 1880.
W. Z. Hickman, Clerk.
[seal] By B. G-. Wilson, Je., D. C.
I. The contention- of the State is that this court is restricted to a review of the record proper, for the reason it appears that the court, after finding defendant guilty, proceeded to impose its sentence before the defendant had filed his motion for a new trial, and as the statute provides in criminal cases the motion for a new trial and in arrest of judgment must be filed before sentence, the exceptions saved on the trial and attempted to be reviewed by the motion cannot be considered by this court. [Secs. 2689 and 2690, R. S. 1899.] In State v. Rosenblatt, 185 Mo. 114, it appeared the defendant withdrew his plea of not guilty and pleaded guilty and by agreement his punishment was assessed at imprisonment in the county jail for six months. Afterwards he filed his motion in arrest, and it was held too late, but as the indictment was a part of the record proper it was fully considered on his writ of error. Afterwards in State v. Pritchett, 219 Mo. 696, the
The failure of the court to set aside its sentence after counsel excepted and gave notice of his motion, was, we are convinced, an inadvertence, in view of its subsequent action in considering the motion, but to hold that such a failure requires the motion to be ignored would set a dangerous precedent, and one which the Legislature never intended. Accordingly, if necessary, the exceptions will be duly considered.
II. It appears that the defendant on the 15th day of May, 1880, filed a copy of his diploma from a medical colleg’e in the city of Cincinnati, sworn to by him, as required by the Act of the General Assembly of Missouri, approved April 28, 1877, and thereupon was duly registered on the roll of physicians and surgeons in the office of the clerk of the county court of Jackson county, and received a license, reciting these facts, under the-hand and seal of the county clerk.
The information was filed under the Act of 1901, Laws 1901, p. 208, which provided, in section 5 thereof, that: “Any person except physicians now registered, practicing’ medicine or surgery in this state, and any person attempting to treat the sick or others afflicted with bodily or mental infirmities without first obtaining a license from the State Board of Health, as provided in this act, shall be deemed guilty of a misdemeanor,” etc. It is conceded defendant has never received a license to practice medicine from the State Board of Health. So that the question is, was the defendant, by reason of his registration under the Act of 1877, “a physician now registered” within the meaning of the Act of 1901? The state insists he was not, the defendant that he was.
Having reached this conclusion we deem it unnecessary to pass upon the numerous other questions so ably discussed by counsel on both sides as to the'sufficiency of the information and like questions. It is to be noted that defendant is charged in this information with the single offense of practicing without a license from the board of health and without being a physician registered according to law. He is not be
The criminal court upon the admitted and established facts should have acquitted the defendant, and for refusal so to do its judgment is réversed and the defendant discharged.