State v. MountjoyState v. Mountjoy
- Reporters:
- , ,
- Before:
- Lockett
The opinion of the court was delivered by
Defendants were charged with practicing the healing arts without a license under
The facts are not disputed nor an issue in this case. Defendants Sandra Mountjoy a/k/a Momingstar, Donna Griffith, and Carolyn Zak were midwives involved in the breech delivery of a stillborn baby in January 1993 at a home in Edgerton, Kansas. Before the delivery of the baby, defendant Momingstar had entered into a written agreement to perform midwifery services for a sum of money.
Prior to closing arguments the trial judge proposed to instruct the jury:
“In order for the defendant to be guilty of the crime charged, the State must prove that her conduct was intentional. Intentional means willful and purposeful and not accidental.
“Intent or lack of intent is to be determined or inferred from all of the evidence in the case.”
The State objected to the instruction, arguing that a violation of
Based on the same reasoning, the State objected to three other instructions. It objected to the instruction requiring proof that the defendants “willfully” engaged in the practice of the healing arts and defining “willfully” as “an act done voluntarily and intentionally with the specific intent to do something the law forbids, and not by mistake or accident.” The prosecution also objected to a third instruction which required the State to prove that the defendants were not acting in response to an emergency and a fourth instruction stating that the jury should consider the defendants’ claims that they reasonably believed that their conduct did not constitute an offense. The prosecution did not, how
Jurisdiction
An appellate court has only such jurisdiction as is provided by law.
State v.
Moses, 227 Kan. 400, Syl. ¶ 7, 607 P.2d 477 (1980). An appeal to this court may be taken by the prosecution as a matter of right after a final judgment in the district court in four situations: (1) from an order dismissing a complaint, information, or indictment; (2) from an order of the district court arresting judgment; (3) upon a question reserved by the prosecution; and (4) upon an order granting a new trial in any case involving a class A or B felony.
The purpose of permitting the State to appeal a question reserved is to allow prosecution to obtain review of an adverse legal ruling on an issue of statewide interest important to the correct and uniform administration of the criminal law which otherwise would not be subject to appellate review.
State v. Ruff,
252 Kan. 625, 629, 847 P.2d 1258 (1993). No formal procedural steps are required by
The State’s notice of appeal provides: “Notice is hereby given that the State of Kansas, plaintiff, appeals from a question reserved on October 4, 1993, through October 8, 1993, to the Supreme Court of the State of Kansas, pursuant to
The docketing statement filed by the State expanded its original question reserved to four questions: (1) What is the proper scope of criminal liability under
Counsel for Mountjoy filed an answer to the State’s docketing statement proposing that the question reserved by the prosecution be further expanded: (1) Is lay midwifery illegal under
To support their claim that the question reserved by the prosecution should be expanded, defendants’ counsel argues that the Kansas Healing Arts Act provides insufficient notice that the practice of midwifery is illegal, contrasting
Except as otherwise provided, an appeal may be taken by a defendant as a matter of right from any judgment against the defendant.
To be considered on appeal, questions reserved by the prosecution must be issues of statewide interest important to the cor
The questions of whether the court improperly instructed the jury as to the affirmative defenses of ignorance or mistake of law and emergency action are not questions of statewide interest to which answers are vital to a correct and uniform administration of justice. The only question of statewide importance for future cases raised by the prosecution is whether the State must prove that the accused had the general intent to violate
Due Process Rights
Defendants assert that in determining the question reserved by the prosecution this court must consider the defendants’ due process right to a fair trial. Defendants argue that their due process right to a fair trial is protected only if
The State points out that in
Holdridge v. United States,
282 F.2d 302, 310 (8th Cir. 1960), the Eighth Circuit noted that the United States Supreme Court had recognized that the elimination of criminal intent from an offense by the legislature is not necessarily violative of the due process clause. In
Holdridge,
the de
To determine the question reserved we must analyze the legislature’s intent when it enacted the Kansas Healing Arts Act.
Is Intent a Required Element of
The practice of healing arts includes any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, or injury, and includes specifically but not by way of limitation the practice of medicine and surgery; the practice of osteopathic medicine and surgeiy; and the practice of chiropractic.
It is unlawful for any person who is not licensed under the Kansas Healing Arts Act or whose license has been revoked or suspended to engage in the practice of the healing arts as defined in the Kansas Healing Arts Act.
Article 32 of the Kansas Criminal Code defines the principles of criminal liability for offenses committed within this state.
In addition to general criminal intent, some statutes also require proof of a specific intent. Under those criminal statutes, the intent to accomplish the precise act or a specific element of the crime which the law prohibits is necessary. One example is the crime of theft,
A person may be held guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.
The State asserts that a person may be held guilty of practicing the healing arts without a license under
In Morissette, the defendant was convicted of “unlawfully, willfully, and knowingly” stealing government property. 342 U.S. at 248. The applicable federal statute did not expressly require an element of criminal intent. The defendant’s défense was that he believed the property to be abandoned and had taken it with no wrongful or criminal intent. The trial court ruled that the statute provided strict liability and instructed the jury that lack of criminal intent was not a defense to the charge of theft of government property. The Sixth Circuit Court of Appeals affirmed.
The United States Supreme Court reversed, holding that the mere omission by Congress of criminal intent in the statute would not be construed as eliminating that element from the offense charged. 342 U.S. at 262-63. It noted that where intent of the accused is an element of the crime charged, its existence is a question of fact which must be submitted to the jury. It concluded that where intent is an element of the crime, the trial court cannot instruct the jury that the law raises a presumption of intent from the act.
For additional authority the defendants refer to
United States v. United States Gypsum Co.,
438 U.S. 422, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978);
United States v. Bailey,
444 U.S. 394, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980); and
Ratzlaf v. United States,
510 U.S. 135, 126 L. Ed. 2d 615, 114 S. Ct. 655 (1994), in which the United States Supreme Court reached the same conclusion as in
Morissette. Gypsum
involved the question of whether a defendant’s state of mind or intent was an element of a federal criminal antitrust offense under the Sherman Act. The Act made nó mention of intent or state of mind as an element of the offense.
In
Bailey, 444
U.S. 394, the Court addressed the level of mental intent, or
mens rea,
required to sustain a conviction under
For additional authority the defendant cites Staples v. United States, 511 U.S. __, 128 L. Ed. 2d 608, 114 S. Ct. 1793 (1994) (government should have been required to prove beyond reasonable doubt that defendant knew weapon he possessed had characteristics that brought it within statutory definition of machine gun); Posters ‘N’ Things v. United States, 511 U.S. _, 128 L. Ed. 2d 539, 114 S. Ct. 1747 (1994) (federal statute proscribing use of interstate conveyance as part of scheme to sell drug paraphernalia requires proof that defendant knowingly made use of interstate conveyance to sell items that he knew were likely to be used with illegal drugs, but does not require proof of specific knowledge that items were drug paraphernalia as defined by statute); United States v. Otiaba, 862 F. Supp. 251 (D.N.D. 1994) (knowledge of illegality is required to establish that defendant knowingly delivered any firearm or ammunition without written notice); United States v. Obiechie, 38 F.3d 309 (7th Cir. 1994) (penalty statute which prescribes penalty for willful violation of licensing statute prohibiting anyone except licensed importer, manufacturer, or dealer from dealing in firearms requires that defendant have knowledge of law for conviction).
Citing
State v. Thompson,
237 Kan. 562, 701 P.2d 694 (1985), defendants argue that the fact the crime charged is a misdemeanor does not mean criminal intent is not required. In
Thompson,
the defendant had been convicted of harassment by telephone in violation of
Under the Kansas Healing Arts Act it is unlawful for any person to practice the healing arts without a license. The statute which makes it illegal to practice the healing arts without a license does not require that the person convicted have the intent to practice medicine. See
The right to practice the healing arts is a privilege granted by legislative authority and not a natural right of individuals. The legislature deemed it necessary as a matter of policy in the interests of public health, safety, and welfare, to enact laws covering the granting of that privilege and its subsequent regulation to protect the public against unprofessional, improper, unauthorized, and unqualified practice of the healing arts.
The State cites several cases to support its assertion that
In State, ex rel., v. Fadely, 180 Kan. 652, 665, 308 P.2d 537 (1957), the court addressed the constitutionality of acts of the legislature establishing a state emergency fund, making appropriations thereto, and creating a state finance council. The court discussed whether the legislation contained sufficient standards for the statutes to operate in the manner intended. The court addressed whether the “preservation of the . public health” was susceptible to an accurate definition. 180 Kan. at 665. As part of its discussion, the court observed that among all the objects sought to be secured by government, none is more important than the preservation of the public health, and an imperative obligation rests upon the State through its proper instrumentalities or agencies to take all necessary steps to accomplish that objective. It stated that statutes enacted to protect public health should be liberally construed and concluded that power could be conferred on administrative boards to carry out such purpose. 180 Kan. at 665.
A third case cited by the State is
State, ex rel., v. Fairmont Foods Co.,
196 Kan. 73, 410 P.2d 308 (1966). In that case, the court examined whether the Dairy Practices Act is prohibiting premium gifts to consumers violated due process by failing to sufficiently define the acts forbidden and by not requiring a criminal intent to violate the Act. 196 Kan. at 77. The
Fairmont
court acknowledged that the common-law rule requiring the element of scienter to hold a person criminally responsible for his or her conduct contains a “well-recognized exception” for public welfare offenses. 196 Kan. at 81. Citing the statement of the public welfare doctrine in
United States v. Balint,
258 U.S. 250, 251-52, 66 L. Ed. 604, 42 S. Ct. 301 (1922), the
Fairmont
court noted that “the [public welfare] doctrine has been recognized in this jurisdiction many times.
(State v. Merrifield,
180 Kan. 267, 303 P.2d 155;
State v. Beam,
175 Kan. 814, 267 P.2d 509;
State v. Brown,
Other Kansas cases cited by the State where the public welfare doctrine has been followed are: State v. Logan, 198 Kan. 211, 424 P.2d 565 (1967) (violation of the Kansas Liquor Control Act); State v. Merrifield, 180 Kan. 267, 303 P.2d 155 (1956) (driving while license suspended). See also State v. Robinson, 239 Kan. 269, 718 P.2d 1313 (1986) (furnishing alcoholic liquor to a minor); State v. Riedl, 15 Kan. App. 2d 326, 807 P.2d 697 (1991) (various traffic violations); City of Wichita v. Hull, 11 Kan. App. 2d 441, 724 P.2d 699 (1986) (city DUI ordinance); City of Overland Park v. Estell, 8 Kan. App. 2d 182, 653 P.2d 819 (1982), rev. denied 232 Kan. 875 (1983) (city traffic ordinance violation); State v. Baker, 1 Kan. App. 2d 568, 571 P.2d 65 (1977) (speeding).
For additional support of the public welfare doctrine’s application from other jurisdictions, the State cites Khan v. Medical Board, 12 Cal. App. 4th 1834, 16 Cal. Rptr. 2d 385 (1993) (violation of statute prohibiting employment of any unlicensed person to engage in the practice of medicine; where manifest object of statute is to protect public from treatment by unlicensed persons, criminal intent or guilty knowledge not an element); People v. Telfer, 233 Cal. App. 3d 1194, 284 Cal. Rptr. 913 (1991) (many public health statutes do not require proof of intent); and People v. Atkins, 76 Misc. 2d 661, 351 N.Y.S.2d 859 (1974) (ehmination of intent valid and proper when applied to health and welfare laws).
Although both parties observe that
Among all the objects sought to be secured; by government, none is more important than the preservation of the public health. State, ex rel., v. Fadely, 180 Kan. at 665. It is fundamental that where a statute is designed to protect the,’public, the language of that statute must be construed in the light of the legislative intent and purpose and is entitled to a broad interpretation that its public purpose may be fully carried out. The common-law rule which requires the element of criminal intent to hold a person criminally responsible for his or her conduct contains a well-recognized exception for public welfare offenses.
The purpose of
Appeal sustained.