173 Ind. 404 | Ind. | 1910
Appellant, a resident of Knox county, Indiana, was charged by affidavit with practicing medicine without a license, in violation of a statute of this State. The prosecution was commenced in the city court of Vincennes,
Over appellant’s motion for a new trial," assigning the statutory ground and also newly discovered evidence, judgment was rendered on the verdict. He appeals, and the alleged errors upon which he relies for reversal are: (1) Overruling of motion to quash the affidavit; (2) denying the motion for a new trial.
The affidavit upon which the appellant was convicted charges “that on October 14, 1908, in the County of Knox and State of Indiana, Colonel E. Witty did then and there unlawfully engage in the practice of medicine, he, the said Colonel E. Witty, not then and there having a license to practice medicine under the laws of the State of Indiana.” Section 8400 Burns 1908, Acts 1897, p. 255, §1, declares it to be “unlawful for any person to practice medicine, surgery or obstetrics in this State without first obtaining a license so to do; as hereinafter provided.” Section 8410 Burns 1908, Acts 1897, p. 255, §9, declares that ‘ ‘ any person who shall practice medicine, surgery or obstetrics in this State without having a license duly issued as hereinbefore provided, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than twenty-five dollars ($25) nor more than two hundred dollars ($200).” Section 8409 Burns 1908, Acts 1901, p. 475, §3, declares what shall be regarded as engaging in the practice of medicine within the meaning of the provisions of the statute requiring a license to practice medicine, namely: “To open an office for such purpose or to announce to the public in any way, a readiness to practice medicine in any county of the State or to prescribe for,
It will be noted that this section declares what shall be regarded as sufficient in a pleading on the part of the State in a prosecution charging a person with a violation of the statute in question. Or, in other words, the legislature has declared that it shall be sufficient to charge that the accused person did upon a certain day in a certain county engage in the practice of medicine, he not having a license to do so, without averring any further or particular facts concerning the same.
The particular objection urged against the affidavit by counsel for appellant is that it does not negative certain provisions found in §8409, supra, which declare that the act is not applicable to the sale of proprietary medicines or to non-itinerant opticians, or to nurses, professional or otherwise. This objection cannot be sustained. These provisions in question are not found in that part of the statute defining the crime. They are in the nature of a defense, and need not be negatived by the State in its pleading; but in order to render them available to the accused person he must interpose them as defenses upon the trial of the cause. Ferner v. State (1898), 151 Ind. 247; State v. Bridgewater (1908), 171 Ind. 1.
The affidavit in question fully complies with the requirement of §8409, supra, and therefore must be held sufficient. The sufficiency of an affidavit similar to the one here involved was sustained by this court under this same provision of the statute in Melville v. State (1909), ante, 352. See, also, Parks v. State (1902), 159 Ind. 211, 59 L. R. A. 190, and eases cited. There was no error in overruling the motion to quash the affidavit.
The evidence in the ease discloses that appellant had an advertisement inserted in the Vincennes Commercial, a newspaper of general circulation published in the city of Vincennes, Knox county, Indiana. This advertisement was published for about a month and was as follows:
Dr. Witty is a regular graduate from the Weltmer*408 Institute of Suggestive Therapeutics of Nevada, Missouri, and successfully treats all forms of Chronic Diseases.
These are a few of the many diseases that yield readily to his drugless treatment: Insomnia, Neuralgia, Chronic Headache, Stomach or Kidney Trouble, Rheumatism, Constipation and all Female Complaints; Goitre, Paralysis, Heart Trouble, Deafness, Sore Eyes, Eczema, Cancer, and Consumption in its first stage; Hernia, Hysteria, Locomotor Ataxia, Sexual Weakness, Asthma, Bronchitis, Hay Fever, Diarrhoea, Dysentery and Nervousness.
Dr. Witty comes highly recommended, and he invites all sufferers to call and see him at 17 SOUTH THIRD STREET.
Office Plours — 1 ¡30 to 5 p. m. Consultation and Examination Free.”
A Mr. Baldwin, a witness for the State, testified at the trial that the appellant had treated him for rheumatism or lumbago. He testified that appellant claimed to belong to the school of Suggestive Therapeutics, and did not give medicine or claim to be a practicing physician; that he treated him only by rubbing his spine, groin and back, and did not give him any medicine. The treatment was with the hands, and each treatment lasted from twenty to thirty minutes. He visited the office of the appellant, where there was a sign reading: “Dr. C. E. Witty.” This witness stated that he paid a certain fee for the treatment. He testified that the doctor told him that the mind had a great deal to do with the control of the body, and that it was beneficial to a patient to get that idea into his mind. Pie gave this patient no medicine, performed no operation, but just rubbed him with his hands and gave him mental suggestion. The wdtness admitted that he was greatly improved by the treatment, and believed that he was well. Another witness said that he called on Doctor Witty at his office in the city of Vincennes, Knox county, Indiana, and told him that he was afflicted with constipation. The doctor gave
It will be observed that the evidence establishes that appellant advertised to the public by a sign in his office and by publication in the Vincennes Commercial, that he was a doctor, and was competent to treat successfully all forms of chronic diseases. He notified all persons, through the public press, that he was not only a ‘ ‘ doctor, ’ ’ but that as such he was a specialist in the treatment of chronic diseases. He further advised them that he was capable of curing, without medicine or surgery, the many diseases mentioned in his advertisement, and that there were but few of the many
The term “doctor,” as defined by the lexicographers, means, in one respect, a person who practices medicine. Consequently, when appellant held himself out to the public and advised them that he was a “doctor,” located in the city of Vincennes, and that he had certain office hours, he gave all persons to understand that he was at least engaged in the practice of healing suffering humanity of diseases by some means adapted to that purpose, notwithstanding the fact that he disclaimed the use of medicine of the character of drugs in his treatment of the diseases mentioned. He did not profess in his advertisement to be but a mere masseur engaged in giving massage treatment to all persons who might desire such, or who had been advised by their physician to take such treatment. He undertook to show by his advertisement that he was learned in his profession and competent to diagnose diseases and prescribe the treatment necessary for a cure. His counsel insist that while it is true that he is shown to have had an office, that he advertised and held himself out as a doctor, “and was ready to and did administer to the wants of the sickj he did so exclusively by mental suggestion and by manual rubbing, and did not pretend to practice medicine in any shape or form.” The mere fact that appellant did not administer to his patients drugs in any form or manner, but confined his treatment to rubbing their afflicted parts, cannot be held to exempt him from the provisions of the statute. If he, under the facts in this case, could be held as not coming within the provisions of the statute, then any person unlicensed to practice medicine might hold himself
In the appeal of the People v. Gordon (1902), 194 Ill. 560, 62 N. E. 858, 88 Am. St. 165, a statute similar to the one here in question was involved. The accused in that ease had advertised that he was a “magnetic healer” and that he gave treatment, after a diagnosis of the disease, by rubbing or kneading the body for the purpose of freeing the nerve force. The supreme court of Illinois in that case, in the course of its opinion by Chief Justice Wilkin, said: “Without some knowledge of the location and offices of the various nerves, muscles and joints, the manipulation of those parts and the flexing of the limbs cannot be intelligently, if, indeed, safely, practiced. Merely giving massage treatment or bathing a patient is very different from advertising one’s business or calling to be that of a doctor or physician, and, as such, administering osteopathic treatment. The one properly falls within the profession of a trained nurse, while the other does not.”
The case at bar, under the facts, falls fully within the decision in the ease of Parks v. State, supra. The defendant in this latter case held himself out as a “magnetic healer,” advertised as such, and styled himself “Professor.” He was not a graduate of any school of medicine, and no license had been granted to him for the practice of medicine. He treated one of his patients for a lame ankle, which he diagnosed as rheumatism. The treatment consisted of holding
In Bragg v. State (190.1), 134 Ala. 165, 32 South. 767, 58 L. R. A. 925, the contention of the accused was that in the practice of osteopathy, in which he had been engaged, no drugs or other medicinal substances were administered or applied internally or externally, nor was any form of surgery resorted to in the treating of diseases, and therefore it was claimed that he did not come within the provisions of the statute. The court, however, in that appeal held that the term “medicine,” as used in the statute pertaining to the regulation of the practice of medicine, had a technical meaning, and as a science the practitioners of it were not simply those persons who prescribed drugs or other medicinal substances as remedial agents, but it also included persons who practiced osteopathy, which as a science it was said included the diagnosis of a disease and the treatment thereof by a system of manipulation of the limbs and body of the patient by kneading, rubbing or pressing upon the different parts of the body. It was held that the accused was properly convicted. The following authorities fully sustain the conviction of appellant in the case at bar: Parks v. State, supra; Dent v. West Virginia (1889), 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623, Little v. State (1900), 60 Neb. 749, 84 N. W. 248, 51 L. R. A. 717; State v. Gravett (1901), 65 Ohio St. 289, 62 N. E. 325, 55 L. R. A. 791; Bragg v. State, supra; People v. Gordon, supra; Matter of Bandel v. Department of Health, etc. (1908), 193 N. Y. 133, 85 N. E. 1067, 21 L. R. A. (N. S.) 49.