165 P. 592 | Mont. | 1917
delivered the opinion of the court.
B. J. Wood was convicted of practicing osteopathy without a license, and has appealed from the judgment and from an order denying his motion for a new trial.
The three specifications of error raise but a single question, viz.: Was it necessary for the state to plead and prove that, at the time the alleged offense was committed, the defendant did not have a certificate issued by the secretary of the board of osteopathic examiners authorizing him to practice osteopathy until the next meeting of the board ? If it was necessary to allege the fact, it was necessary to prove it, and, conversely, if it was not necessary to allege it, it was not necessary to offer any proof
The indictment upon which defendant was tried charges him with practicing osteopathy for compensation “without first having obtained a certificate or license from the state board of osteopathic examiners of the state of Montana entitling him so to do, ’ ’ and the charging part of the indictment concludes: ‘ ‘ He, the said B. J. Wood, not being then and there a practitioner of medicine and surgery regularly and duly licensed to practice under the laws of the state of Montana.” It is the contention of appellant that the provision of section 1597 relating to one who has a temporary certificate to practice osteopathy, and the provision of section 1605b relating to licensed physicians and surgeons, each constitutes an exception to the statute which defines the offense of practicing osteopathy without a license, and, since the state negatived one of these exceptions, it was incumbent upon it to negative the other, and, having failed to do so, the indictment does not state a public offense and will not support a judgment of conviction; and, since the state did not
We are not prepared at this time to accept the rule announced by the Kansas City court of appeals, in State v. Huxoll, 191 Mo. App. 304, 178 S. W. 866, as applied to the facts of that case; but assuming, for the purposes of these appeals only, that the rule correctly states the law, and that, “where an indictment is unnecessarily particular in its negatives the state is concluded by it if it fails to specifically negative all the exceptions,” we are confronted in this instance with the inquiry: Does this case fall within the rule? Does this indictment negative one exception found in the statute, and fail to negative another one found therein ?
“An exception takes out of an engagement or enactment something that would otherwise be part of the subject matter of it.” (Bouvier’s Law Dictionary.) If the concluding portion of subdivision “b,” section 1605, quoted above, is an exception, then a physician or surgeon is not within the prohibition of the penal statute, and may lawfully practice osteopathy as such in this state without a license from the state board of osteopathic examiners. That this was not the intention of the lawmakers is practically a demonstrable fact. The practice of medicine and surgery is regulated by sections 1585-1593, Revised Codes. Every person who practices medicine or surgery is required to secure a certificate from the state board of medical examiners, and every person who violates the statute is guilty of a misdemeanor. Section 1590 excepts from the provisions of the statute skilled and experienced midwives, commissioned surgeons of the army and navy in the discharge of their official duties, and physicians or surgeons, from other jurisdictions, in actual consultation here. Section 1591 defines “practicing medicine or surgery,” and then proceeds: “Provided however, that nothing in this section shall be construed to restrain or restrict any legally licensed osteopathic practitioner practicing under the laws of this state.” A physician or surgeon, within the meaning of these statutes, is one who has received from the state
In State v. Dodd, 51 Mont. 100, 149 Pac. 481, we considered these statutes at length and concluded that the practice of medicine and surgery does not include the practice of osteopathy, and that the practice of osteopathy does not include the practice of medicine and surgery; that the legislature has grouped all persons practicing the healing art into two distinct classes, (1) physicians and surgeons, and (2) osteopathic practitioners, and that the so-called proviso added to section 1591 above "did not affect the status of osteopathic practitioners in the least. They were confined thereafter, as theretofore, to the practice of osteopathy and forbidden to practice medicine or surgery without the certificate from the state board of medical examiners required of everyone who seeks to engage in such practice.” We are more than ever confirmed in the correctness of those conclusions. The so-called proviso found in section 3591, and the like provision in section 1605b, were doubtless enacted out of abundance of caution and to emphasize the legislative intention that neither school of practice should be held to infringe upon the other.
Having determined that the provision in section 1591 does not permit an osteopathic practitioner to practice medicine or surgery without a certificate from the state board of medical examiners, it follows that the compensating provision in section 1605b does not permit a physician or surgeon to practice osteopathy without a license from the state board of osteopathic examiners, and, since the provision in section 1605b does not exempt physicians or surgeons from the operation of the statute prohibiting the practice of osteopathy without the required license, it is not an exception within the meaning of that term as applied to statutory construction. It follows that the indictment under review does not negative any exception, and that the rule invoked by appellant has no application here.
The completed offense of practicing osteopathy without a license is clearly defined in the statute without reference to the provisions of section 1597. The exception is not any part of the definition of the offense, and it was therefore not necessary to negative it. If the defendant had such temporary certificate, it was a matter of defense.
The judgment and order are affirmed.
!Affirmed.
