State v. Yates

Jan 11, 1910

Reporters:: ,
Before:: McClain

Lead Opinion

McClain, J.

The indictment was in two counts, in the first of which defendant was charged with wrongfully and unlawfully publicly professing to cure and heal a per*334son or persons withоut having filed for record and recorded with the recorder of the county’ a certificate from the State Board of Medical Examiners сonferring upon him the right to practice medicine, and as a physician publicly professing to cure or ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍heal; and in the second count hе was charged with willfully, wrongfully, and unlawfully publicly professing-to be a physician, and unlawfully assuming the duties of the profession, without having filed for record and recorded’ such a certificate.

I MEDICINE WITHOUT certificate: indictment: _ duplicity. I. This indictment is not open to the objection of duplicity. In Code, section 2579, it is provided that “any person shall be held as practicing medicine, or to be a physician, who shall publicly profess to be ■ a physician and assume the duties of that profеssion or who shall make a practice of prescribing or of prescribing and furnishing medicine for the sick, or who shall publicly profess to cure or heal.” And in section 2580 it is provided.that any person who shall practice medicine in the state without having first obtained and filed for record the required certificate shall be punished as specified in that section. The acts charged are not stated as separate offenses, but as contemporaneous acts, which, construed together, constitute the practice of medicine. State v. Wilhite, 132 Iowa, 226. Even if the’ indictment be interpreted to charge two distinct acts, it is not objectionable, for they are both within the prohibition of Code, section 2580, and it is well settled that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍different acts enumerated disjunctively in the statute as constituting a specified crime may be conjunctively charged, or may be charged in different counts of the same indictment. State v. Hubbell, 137 Iowa, 570; State v. Stewart, 138 Iowa, 536.

*3352. Same: filing of certificate: surplusage. *334II. The filing for record of the certificate with the recorder. of the county is, undeV the statute, sufficient in •this respect; but thе fact that the indictment charges that the defendant practiced medicine “without having filed *335for record and recorded” the certificate required is an immaterial variance from the language of the statute. The filing for record is in fact the recording ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍so far as the holder of thе certificate is concerned; but, even if this were not so, the allegation as to recording is purely surplusage.

3. Illegal practice OF medicine: evidence. III. As tending to show that the defendant was publicly professing to cure and heal, the’ court admitted in evidence, over the. defendant’s objection that it was incompetent, irrelevant, and immaterial, an article published in a newspaper purporting to be a communication from defendant in which defendant, referring to a former arrest for a similar offense, stated: “I was arrested on a warrant sworn to by Dr. C. L. Jones accusing me of the practice of mеdicine and surgery, neither of which I have ever doné. . . . I would raise’ my hand toward high heaven and swear before God and in the presence of men tо the infamous lies sworn to in this warrant. If it is a crime to give relief to some afflicted brother, then I am guilty and will con1 tinue to do so just as long as there is any justice in courts or any higher courts to appeal to. If it is a crime to do good, I thank God that I am a criminal and will go ahead doing good. You will find mе at my old stand.” While this language did not contain an unequivocal admission that the defendant had been practicing medicine or professing to hеal, it did indicate a purpose to continue to do those things which he had previously been doing and for which he had been arrested. But we find no еvidence in the record as to what defendant had been doing in the way of practicing medicine or professing to heal prior to the dаte of the publication of the article. Such evidence would have béen’ inadmissible, if offered, for the defendant was indicted three days priоr to the publication of the article for a similar offense,, and on trial was acquitted, and the court in the case now before us held that аny evidence of *336his acts prior to the time of that indictment was inadmissible. It was not shown that defendant had been engaged in practicing or prоfessing between the time of the former indictment and the date of the publication of the article. Without any evidence, therefore, that plaintiff had prior to the publication of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the article been engaged in unlawfully practicing medicine or unlawfully professing to cure and heаl, we can not see how the statements in the article tended to show any violation of. the statute by defendant. The court erred thereforе in admitting testimony as to the publication of the article referred to.

4’ same’ . IY. In view of the possibility of another trial, we refer briefly to the contentiоn for appellant that the other evidence was not sufficient to sustain a conviction. One witness testified that a day or two after the former trial defendant said he was healing the sick and curing people; another that he applied to defendant for treatment for an arm injured by a severe fall on the sidewalk, and was told by defendant: “Take off your coat, and I will cure you, and it will be all right when you leave here;” after which defendant worked at him for twenty minutes. Another witness testified that he got acquainted with defendant at a boarding house, and heard him talk with people about the business he was in. “He talked about treating people. lie told that he rubbed people and cured them. He said that he was treating people any place he went to. He did not say how many people he treated, nor ■ name, nor describe the treatment he gave his patients.” .This witness said he applied to defendant for treatment, and was told that he (the witness) “had a healing in his throat,” which defendant rubbed, аnd said he could relieve. Defendant gave him treatments, but he got no relief. Subsequently, in regard to payment, he told this witness that he was in the habit of charging $5 for three treatments. The witnesses who testified to being treated said that defendant did not use medicine or surgical *337instruments. We think there was enough evidence to sustain a conviction for publicly professing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to practice medicine and to cure and heal within the general rule stated by this сourt in State v. Heath, 125 Iowa, 585. But the testimony was not of such unequivocal character, especially in Anew’ of the statements of the Avitnesses on their cross-examination and the testimony‘of defendant, that we would be justified in holding the admission óf the article published in the newspaper OA‘er defendant’s signature to have been without prejudice. Without this article, and especially the concluding sentence, in which defendant asserted that he would he found at his old stand, the jury might not have found as a matter of fact that defendant was publicly practicing or pretending to cure and heal.

The other assignments of error are without merit; but, for the error above pointed out, the judgment will he reversed, and the case remanded for new trial. — Reversed and remanded.

Dissenting Opinion

Deemer, C. J.

(dissenting). — I think the testimony whiсh the majority say should not have been admitted Avas relevant and material to the issue in the case. Defendant admitted that he Avas relieving afflicted brethren, that he would continue to do so, and could be found at his old stand. This to my mind was an admission Avhich the jury was authorized to consider. I would affirm.-