State v. Ragland

31 W. Va. 453 | W. Va. | 1888

Johnson, Pbesident :

J. B. Ragland was, on the 17th day of October, 1887, in the Circuit Court of Boone county, indicted as an itinerant physician and vendor of drugs, etc. The indictment is as follows : “The jurors of the State of West Virginia, in and for the body of the county of Boone, and now attending the said court, upon their oaths present that J. B. Ragland, on the 1st day of October, 1887, in the said county, was ah itinerant physician, and then and there publicly professed to treat diseases, injuries, and deformities, and he, the said J. B. Ragland, then and there was an itinerant vendor of certain drugs, nostrums, and ointments, with which he, the said Ragland, then and there publicly professed to cure and treat diseases, injuries, and deformities, and he, the said J. B. Ragland, then and there, to wit, at the county aforesaid, on the day and year aforesaid, as such itinerant physician, and as such vendor of such drugs, nostrums, ointments, and patent medicines, as aforesaid, did practice and attempt to practice medicine, and did then and there sell, and attempt to sell, such drugs, nostrums, ointments, and patent medicines, and did then and there practice his business as such vendor of said nostrums, drugs and patent medicines, and did then and there practice and attempt to practice in said county, without then and there having paid the special tax required by law, and without having filed with the clerk of the County Court of said county the receipt of the sheriff of said county showing the payment of such tax, without then and there having a license to act as such itinerant physician and vendor of patent medicines, drugs, ointments, and nostrums, against the peace and dignity of the State.”

The defendant demurred to the indictment, which demurrer was overruled, and the defendant pleaded “not guilty.” The defendant waived a jury, and the evidence was heard by the court in lieu of a jury; who, after hearing the evidence, found the defendant guilty, and assessed Ms fine at $100.00. Thereupon the defendant moved the court to set aside the finding, and grant him a new trial, because the finding was contrary to the law and evidence. The court overruled the motion. The defendant then moved in arrest of judgment, which motion the court also overruled, and entered judgment against the defendant for $100.00 fine and costs. The evidence is all certified in the bill of exceptions to the refusal of the court to set aside the finding and grant a new trial. To the judgment the defendant obtained a writ of error.

The first error assigned is overruling the demurrer to the indictment. The indictment above set forth was found under section 14, ch. 150, p. 819, Amended Code. The section is as follows : “Any itinerant physician, desiring to practice medicine in this State, or any itinerant vendor of any drug, nostrum, ointment, or appliance of any kind, intended for the treatment of disease, or injuries, or who shall by writing or printing, or in any other method, publicly profess to cure or treat diseases, injuries, or deformities, by any drug, nostrum, manipulation, or other expedient, shall, before doing so, pay to the sheriff of every county in which he desires to practice a special tax of fifty dollars for each month, or fraction of a month, he shall so practice in such county, and take his receipt in duplicate therefor. He shall present, said receipts to the clerk of the County Court of such county, who shall file and preserve one of them in his office, and shall endorse on the other the words, ‘A duplicate of this receipt has been filed in my office,’ and sign the same: and if any such physician or vendor of patent medicines shall practice, or attempt to practice, in any such county, without having paid such tax, and filed such receipt with the clerk of the County Court, and obtained his indorsement on the other as aforesaid, or if he shall practice, or attempt to practice, for a longer tíme than that for which he has paid such tax as aforesaid, he shall be guilty of a misdemeanor, and shall be fined not less than one hundred nor more than five hundred dollars. Any person who shall travel from place to place, and by writing, printing, or otherwise, publicly profess to treat or cure diseases, injuries, or deformities, shall be held and subject to the taxes, fines and deemed tobe an itinerant physician, and penalties prescribed in this section.”

This is a very crudely drawn statute. Its provisions are by no means clear, but we think we understand what was intended by the statute. It is clearly intended to prevent itinerant "physicians from going from county to county in the State, and practicing medicine, unless they pay the heavy tax prescribed in each county, which undoubtedly was intended to prohibit such practice. It was also intended to prevent any one, whether a physician or not, from traveling from county to county, vending drugs, nostrums, ointments, or appliances of any kind intended for the treatment for diseases, or injuries, unless the special tax were paid, or to prevent any one who should by writing or printing, or in any other method, publicly profess to cure or treat diseases, injuries, or deformities, by any drug, nostrum, manipulation, or other expedient, from doing so until he should pay the special tax imposed. Therefore it seems the statute was intended to reach the itinerant physician, the itinerant vendor of drugs, etc. and any one, physician or not, who shall, by writing or printing, or in any other method, publicly profess to cure or treat diseases, injuries, and deformities, by any drug, nostrum, manipulation, or other expedient, and practice what he professed to do. By this statute any one and all persons are prohibited from doing any act mentioned therein, or pertaining to either of the three classes, without first paying the special tax prescribed. This indictment in one count charges the defendant with doing all three of the acts prohibited without first paying the special tax.

Can all these acts be properly charged in one count? The plaintiff in error insists that they can not be so charged in the same count, and that the count is fatally defective, and cites State v. Gould, 26 W. Va. 258. That case is utterly unlike this. That was an indictment for cruelty to an animal. This is a revenue-case, where the pleading is much more liberal to advance the remedy and prevent the evil. This is much more like an indictment for selling spirituous liquors, etc., without a license therefor. Section 1 of chapter 32 of the Code, among other things, provides that “ no person, without a State license therefor, * * * shall sell, offer or expose for sale, or solicit or receive orders for, or keep in his possession for another, spirituous liquors, wine, •porter, ale, beer, or any drink of like nature.” It is not doubted that if an indictment in a single count should charge that the defendant did all these acts the indictment would be good, and the proof of his doing any one of them without the license to sell would be sufficient to convict him; and, if the proof was he did one or all of them, a State license to sell the spirituous liquors, etc., would be a perfect defence. So here the special tax paid, as required by section 14 of chapter 150, would authorize a person to do any or all of the three acts mentioned in the section. If he does any one of them he is guilty, unless he has paid the special tax required. If the proof is that he did one or all of the acts specified, if he can show that he has paid the special tax, and has conrplied with the requirement of the statute, he is protected. The count charging the defendant with doing all the three things is proper, and the count is good. It is the better way to make the charge, and then, if the proof is he did either, the indictment is sustained.

Does the evidence justify the finding of the court? From the evidence it appears that the defendant, on the 17th day of October, 1887, in Boone county, sold to one Whitt Allen a bottle of medicine known as “ Ragland’s Lightning Relief,” for which Allen paid him fifty cents; that the defendant declared in a public address at the time of offering the said medicine for sale, that he did not come for the purpose of practicing medicine, nor treating diseases, but represented the medicine to be his own preparation, good for and would cure if taken according to directions, certain diseases, among which was neuralgia; and that the medicine was patented. The bottle sold, with the wrapper, label, and printed matter accompanying it, was all given in evidence by the State, to which evidence the defendant objected; but the objection was overruled, and he excepted. In this evidence the medicine was highly recommended to cure certain diseases. Then it appears from the said printed matter with the bottle that “the public are most respectfully referred to the following certificates from gentlemen well known in this city, who testify, from actual experience, to the efficacy of this most excellent and reliable preparation. Sold by all druggists and medicine dealers. Price, 50 cents per bottle. Liberal discount to the trade. Prepared exclusively by Dr. J. B. Ragland, Louisville, Ky.” Then follows a number of testimonials from persons in Mississippi, Tennessee and Kentucky, telling of the wonderful cures effected by the medicine. The defendant, to maintain the issue on his part, proved that he was not an itinerant physician, practicing or attempting to practice medicine in this State; that, on the occasion of the sale of the bottle of medicine before mentioned, he publicly and distinctly announced that he was not pretending to treat or cure diseases, nor in any manner to pratice medicine, but simply to introduce and sell his medicine, the same being his own preparation, and being patent or proprietary medicine, under the laws of the United States; and that he had on the occasion of such sale, as well as all other occasions, in offering the same for sale, announced that he would not treat diseases in any manner whatever, and that the virtue of the remedy was in the medicine itself, and not in him, the defendant; that any one else could sell such medicine as well as he himself could.

The court, who tried the issue in the place of a jury, found the defendant guilty, and assessed a fine against him of $100.00. The court overruled the motion for a new trial and in arrest of judgment, and entered judgment for the fine and costs. The evidence of the printed matter on the bottle when sold was proper. From all the evidence, the court was certainly j ustified in finding the defendant an itinerant vendor of a drug. The finding was justified by the evidence, and the motion for a new trial was properly overruled.

The indictment being good, the motion in arrest of judgment was properly overruled. There is no error in the judgment, and it is affirmed.

AEEIRMED.