Beyer v. State

• Citation: 158 N.E. 477,199 Ind. 647
• Decision Date: 28 October 1927
• Docket Number: 25,246
• Parties: Beyer v. State of Indiana
• Court: Indiana Supreme Court

158 N.E. 477

199 Ind. 647

Beyer v. State of Indiana

No. 25,246

Supreme Court of Indiana

October 28, 1927

Rehearing Denied February 15, 1928.

[Rehearing denied February 15, 1928.]

1. INDICTMENT AND AFFIDAVIT.---Indictment need not negative exceptions contained in provisos to the statute defining the crime.---An indictment or affidavit charging the commission of a crime need not negative exceptions contained in provisos to the statute defining the crime. p. 648.

2. PHYSICIANS AND SURGEONS.---Indictment charging practice of medicine without license need not negative exceptions in statute.---An indictment charging the defendant with having practiced medicine without a license, in violation of 12243 12244 Burns 1926, need not negative the exceptions to the statute, as they are contained in provisos thereto, such exceptions constituting defenses. p. 648.

3. PHYSICIANS AND SURGEONS.---Proof required to convict of practicing medicine without license.---In a prosecution for practicing medicine without a license in violation of 12243 Burns 1926, the statute does not require allegation or proof that defendant made any announcement of his readiness to practice medicine or to prescribe for or to cure those suffering from any disease. p. 651.

4. PHYSICIANS AND SURGEONS.---Evidence held sufficient to sustain conviction for unlawfully practicing medicine in violation of 12243 Burns 1926. p. 651.

5. CRIMINAL LAW.---Instruction held harmless in prosecution for practicing medicine without license.---In a prosecution for practicing medicine without a license, an instruction that it was immaterial whether the persons treated by defendant were benefited or cured was harmless where there was no evidence as to whether any of them were benefited or cured and the verdict was clearly right under the evidence. p. 652.

6. PHYSICIANS AND SURGEONS.---Instructions not referring to exceptions in statute not error where defendant made no claim to being within exceptions.---In a prosecution for practicing medicine without a license, where the defendant did not claim to be within any of the exceptions to the statute and no issue was raised as to any of such exceptions, instructions that did not refer to the exceptions were not erroneous. p 652.

7. CRIMINAL LAW.---Repetition of instructions.---Repetition of instructions will not work a reversal in a criminal case unless it is of such a nature as to mislead the jury. p. 652.

Henrietta Beyer was convicted of practicing medicine without a license and she appeals. Affirmed.

Rehearing Denied February 15, 1928.

From Decatur Circuit Court; Julian Sharpnack, Special Judge.

Henrietta Beyer was convicted of practicing medicine without a license, and she appeals.

Affirmed.

Chauncey W. Duncan, George L. Tremain and Rollin A. Turner, for appellant.

Arthur L. Gilliom, Attorney-General and Dale F. Stansbury for the State.

Gemmill J. Myers, J., not participating.

OPINION

Gemmill, J.

This is an appeal from a judgment of the Decatur Circuit Court against the appellant for having unlawfully engaged in the practice of medicine without having any license to do so, on or about November 30, 1925, in Decatur county, Indiana, in violation of §§ 8409 and 8410 Burns 1914 (§§ 12243 and 12244 Burns 1926.) The judgment was that she be fined in the sum of $ 150.

The first assignment of error is that the court erred in overruling appellant's motion to quash the indictment. It is contended that the indictment was not sufficient because it did not negative certain exceptions of the statute. In State v. Paris (1913), 179 Ind. 446, 453, 101 N.E. 497, the court said: "Where the exception comes by way of proviso . . . it is not necessary to show by negative averment that the defendant was not within the exception, but the exception in such case is a mere matter of defense." In defining the crime of which appellant was convicted, the exceptions are contained in provisos. An affidavit charging defendant with practicing medicine without a license need not negative the exceptions set out in a proviso to the statute which defines the practice of medicine, such exceptions constituting defenses. Witty v. State (1910), 173 Ind. 404, 90 N.E. 627. Affidavits containing allegations similar to those in the indictment in the instant case have been held to be sufficient. Parks v. State (1902), 159 Ind. 211, 64 N.E. 862; Melville v. State (1909), 173 Ind. 352, 89 N.E. 490. It was not error to overrule the motion to quash the indictment.

The second assignment of error is that the court erred in overruling appellant's motion for a new trial. Appellant claims that there was a total lack of evidence to show that she was guilty of practicing medicine without a license. From the evidence, the following appeared: The defendant lived in the town of Sandusky in Decatur county. She rented a two-story house called the Fleetwood house about two blocks from where she lived. In the house were fifty to sixty common chairs and a few other pieces of furniture. No one stayed or lived there constantly. When people came to see the defendant, they would be received in the front part of the house. There they would register and would receive a number, and when their turn came, they would enter a room where the defendant was. When a person registered, a fee of one dollar was paid. The registration fee was later raised to two dollars. Some days, fifty to sixty people would register. When patients would enter the treatment room, the defendant would stand five to seven feet distant, and, without asking any questions, would tell them what different ailments they had and what their condition was. She would then prescribe medicine for them. Sometimes, she would treat patients by bathing the affected parts with a very hot liniment. The defendant would tell the attendant at the registration desk the kind of medicine to give the patients. She had eight or ten different kinds of medicine. The patients would pay the person at the registration desk for the medicine. The money collected for registration and for medicine was later handed to the defendant. She did not have a license to practice medicine in Decatur county, Indiana.

Section 12234 Burns 1926, § 8400 Burns 1924, provides as follows: "That it shall hereafter 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." The practice of medicine is thus defined in § 12243 Burns 1926, § 8409 Burns 1914:

"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, or to give surgical assistance to, or to heal, cure or relieve, or to attempt to heal, cure or relieve those suffering from injury or deformity, or disease of mind or

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