State v. Lewis, 164 Wis. 363

164 Wis. 363 | Wis. | 1916

The following opinion was filed October 24, 1916:

Esoi-iweileb, J.

The motion to dismiss the appeal from the order striking out the allegation in defendant’s answer that the proceedings herein are actuated by malice and ill will must be granted. Such an order is not one subject to review by this court by direct appeal therefrom. Sec. 3069, Stats.; Wiesmann v. Shanley, 124 Wis. 431, 102 N. W. 932; Gooding v. Doyle, 134 Wis. 623, 115 N. W. 114.

By sec. 5, ch. 426, Laws 1903, there was incorporated into the law and made a part of what is now sec. 1435i, Stats., the following provision:

“If any person licensed or registered by said board \i. e. of medical examiners] shall be convicted of any crime, committed in the course of his professional conduct, the court in which such conviction is had shall in addition to any other punishment imposed pursuant to law revoke such license or certificate.”

The defendant contends that, since these proceedings are instituted for the canceling or revoking of his license and the same canceling and revoking could bave been done in the proceedings in municipal court in case of his conviction, pursuant to the above quoted provision of sec. 143 5i, he is now in effect being put in second jeopardy. He also contends that in any event the judgment of acquittal in the municipal court may be pleaded as a bar to these proceedings.

These proceedings are declared by the express language of the legislature to be civil proceedings. “Sec. 143 6e. . . ,. Such action shall be commenced and prosecuted as a civil action in the name of the state of Wisconsin as plaintiff, and against such person complained against as defendant, and the rules of pleading, evidence and practice in civil actions in the circuit court shall be applicable thereto, and either party may appeal from the circuit court to the supreme court as in other civil actions.”

They have been so held by this court in the case of State v. Schaeffer, 129 Wis. 459, 109 N. W. 522. While nothing is said in that decision with reference to the above quoted portion of see. 1435i relied upon by defendant, although the same was then in the law, yet it was there determined that this is a civil action and not one which imposes a penalty or prescribes a forfeiture. The effect of the above quoted portion of sec. 143 5i, therefore, is simply to give, as an incident to such conviction, power to the court in the criminal proceeding to do directly and forthwith what might be done in subsequent civil proceedings. It therefore does not change the nature of the proceedings now before us from civil to criminal, and unless it does so change their nature there can be no application of the doctrine of former jeopardy, for that applies only as to criminal proceedings. Brown v. Swineford, 44 Wis. 282; State v. Shevlin-Carpenter Co. 99 Minn. 158, 108 N. W. 935, 938; Stout v. State ex rel. Caldwell 36 Okla. 744, 767, 130 Pac. 553. We must therefore hold that by the present proceedings the defendant is not put in jeopardy for a second time for the same charge upon which he was acquitted in the proceedings in the municipal court.

On the second question which is urged in this case and in the case of State v. Little, post, p. 367, 159 N. W. 747, that the acquittal in the criminal prosecution of the charge of abortion may be pleaded in bar to these civil proceedings, we are of the opinion that the difference between the criminal proceedings and these is such that the general well recognized rule applies, namely, that a judgment in a criminal proceeding is neither a bar to a subsequent civil proceeding involving the same state of facts, nor is it proof of anything in such subsequent civil proceedings except of the fact of conviction. State ex rel. Shea v. Evenson, 159 Wis. 623, 626, 150 N. W. 984; Stone v. U. S. 167 U. S. 178, 189, 17 Sup. Ct. 778; 23 Cyc. 1348; Micks v. Mason, 145 Mich. 212, 215, 108 N. W. 707, 11 L. R. A. n. s. 653; U. S. v. Donaldson-Shultz Co. 148 Fed. 581; State v. Roach, 83 Kan. 606, 611, 112 Pac. 150; State v. Corron, 73 N. H. 434, 448, 62 Atl. 1044.

The same question raised here as affecting a physician’s right to practice has been raised and held of no force in proceedings for disbarment of an attorney. People ex rel. Colo. Bar Asso. v. Weeber, 26 Colo. 229, 230, 57 Pac. 1079; People ex rel. Colo. Bar Asso. v. Thomas, 36 Colo. 126, 91 Pac. 36; In re Thresher, 33 Mont. 441, 84 Pac. 876; In the Matter of -, 86 N. Y. 563.

Proceedings such as these are not in their nature an effort to further punish one who may already have been punished for the same offense, but are a rightful exercise of the power of the state to protect its citizens from physicians of bad character. Hawker v. New York, 170 U. S. 189, 196, 18 Sup. Ct. 573. The trial, therefore, of defendant in this action does not amount to substantially the same thing as a new trial in a criminal prosecution after an acquittal in it, as was the situation in the case much relied upon by defendant of Coffey v. U. S. 116 U. S. 436, 443, 6 Sup. Ct. 437. That case has no application here. The court below was justified in sustaining a demurrer to that part of the answer which attempted to interpose as a defense tbe acquittal of defendant in the municipal court.

By the Court. — The appeal-from the order striking out part of the answer is dismissed and the order sustaining the demurrer to a part of the answer is affirmed, and the cause remanded for further proceedings.

A motion for a rehearing was denied, with $25 costs, on December 5, 1916.