| Haw. | Mar 4, 1913
OPINION OP THE COURT BY
Tbe defendant has appealed upon points of law from a judgment of conviction entered against him in the district court of Wailuku.
The charge upon which the defendant was prosecuted alleged, “That Takamine, at Wailuku, District of Wailuku, County of Maui, Territory of Hawaii, on the 20th day of December, A. D. 1912, did practice medicine on one Dobara, by burning a drug known as Mogusa on the person of the said Dobara, for the treatment of asthma, without having a license so to do as required by law,” etc.
The defendant demurred to the charge on the ground that it did not show a violation of any law of this Territory. The demurrer was properly overruled. The contention that the charge should have negatived the provisos contained in section 1069 of the Revised Laws is not well taken. The statute makes it a misdemeanor for any person to practice medicine or surgery in this Territory either gratuitously or for pay, or
The defendant claims that the evidence does not support the judgment, and in this connection it is argued that there was no evidence that Dobara had asthma, or was treated for it; that there was no evidence that mogusa is a drug; and that the facts in evidence -fall short of showing that the defendant practiced medicine within the meaning of the statute, in that evidence of a single act of administering medicine does not constitute the practice of medicine, and that the proofs do not nega
Dobara, in substance, testified that he had been ill for about a month; that he had pains in the chest and other parts of his body; that he had trouble in breathing; that he called on the defendant on the day mentioned in the charge and asked him to examine -him and treat him; that he designated the parts on which he desired to have the treatment applied; that the defendant burnt mogusa on those parts; that it was a usual treatment; and that the applications relieved the pain. A police officer testified to having witnessed the treatment of Dobara by the defendant on the occasion in question, and a deputy sheriff was allowed to testify over defendant’s objection that on December 19th he had asked the defendant if he was a doctor and that the defendant replied that he cured all kinds of sickness — cases that the doctors could not cure — through the use of mogusa, and that on the following day the defendant handed him two Japanese books which he said he had studied.
The charge does not allege that Dobara had the asthma. We think the pleader meant to aver that the defendant practiced medicine by burning mogusa on the person of Dobara for the treatment of asthma, i. e., that the defendant supposed or believed that Dobara had the asthma. But the defendant’s diagnosis of Dobara’s ailment was altogether immaterial and any averment as to what the defendant believed was mere surplusage. An averment which is descriptive of the identity of that which is legally essential to the charge cannot be rejected as surplusage though it be unnecessarily particular, but the averment in question did not relate to a necessary element of the offense; the charge was complete without it. The general rule is that an indictment will not be vitiated by surplusage and that such matter need not be proved. People v. Aldrich, 104 Mich. 455" court="Mich." date_filed="1895-03-19" href="https://app.midpage.ai/document/people-v-aldrich-7937579?utm_source=webapp" opinion_id="7937579">104 Mich. 455, 459; Com. v. Lord, 147 Mass. 399" court="Mass." date_filed="1888-10-13" href="https://app.midpage.ai/document/commonwealth-v-lord-6422861?utm_source=webapp" opinion_id="6422861">147 Mass. 399; Hull v. State, 120 Ind. 153" court="Ind." date_filed="1889-09-27" href="https://app.midpage.ai/document/hull-v-state-7049964?utm_source=webapp" opinion_id="7049964">120 Ind. 153;
There was evidence before the court to support a finding that mogusa is a drug. A “drug” is “any substance used as a medicine or in the composition of medicines for internal or external use,” and “medicine” is “any substance or preparation used in treating disease; a remedial agent; a remedy.” Webster’s New International Dictionary. The unused contents of a package of mogusa were put in evidence and the testimony showed that the defendant used the substance as a remedy in the treatment of' Dobara’s ailment.
The testimony of the deputy sheriff was properly admitted. It tended to explain and characterize the defendant’s act and to show that it was not one of mere friendly assistance but was performed by one who professed to be able to effect cures. In the case of State v. Blumenthal, 141 Mo. App. 502" court="Mo. Ct. App." date_filed="1910-02-21" href="https://app.midpage.ai/document/state-v-blumenthal-6624482?utm_source=webapp" opinion_id="6624482">141 Mo. App. 502, 505, evidence of a sign on a door, and of advertising, was held to have been properly admitted because it tended to support the charge of practicing, notwithstanding the act of advertising as a physician was made an offense by the statute. And in Mayer v. State, 64 N. J. L. 323, 327, where the charge was of practicing medicine without a license by “prescribing for one Charles Hendrick a certain medicine,” etc., it was held that a business card of the accused which tended to show his connection with a certain free dispensary was admissible as corroborative evidence for the prosecution as well as tending to rebut testimony given by' the accused.
There is considerable force in the contention made by defendant’s counsel that the word “practice” signifies frequent or repeated action and that the performance of a single act could not constitute the practice of medicine. But where, as here, other testimony in the case has colored and characterized the act, and has a direct tendency to show that the act was not a
Judgment affirmed.