"(6) It is not necessary for the city to prove the defendant guilty by the testimony of witnesses who heard the defendant employ a solicitor, capper, or drummer to solicit patients for him to treat; but such guilt may be established by proof of facts and circumstances from which may reasonably and satisfactorily imply his guilt beyond a reasonable doubt."
"(8) You are instructed that all persons who stand by, aid, or assist, or who, not being present aiding, abetting, or assisting, hath advised and encouraged the perpetration of a crime, are guilty of the commission of a crime as the person so aided, abetted, assisted, advised, or encouraged one who commits the same."
Instructions given at request of defendant:
"(1) The jury are instructed that any person has a perfect right to recommend a physician to another, and such physician has a perfect legal right to be recommended; and, before the jury in this case should find the defendant guilty of violation of the ordinance of the city, they must be satisfied from the evidence, beyond a reasonable doubt, that there was a contract, express or implied, entered into between O. S. Burrow and others, whereby said Burrow did employ a solicitor or drummer for the purpose of procuring patients to be treated by him as a physician or surgeon, and that said O. S. Burrow was at such time of employing said drummers a regularly licensed physician and surgeon, and engaged in the practice of medicine in the city of Hot Springs, and that such contract and employment were made and entered into after said ordinance was published.
"(2) The jury are instructed that the defendant is presumed to be innocent, and this presumption accompanies him throughout the trial, and he may stand upon this presumption, and is not required by the law to produce any evidence of his innocence until the prosecution has proved every allegation material to the crime with which he is charged, by such evidence as shall be sufficient to prove his guilt beyond a reasonable doubt."
"(4) The jury are instructed that, before they can be warranted in convicting the defendant
upon circumstantial evidence, the testimony should be so strong as to convince them of defendant's guilt, to such an extent as to exclude every other reasonable hypothesis than that the defendant is guilty."
"(7) If the jury believe that the evidence in any essential point in the case admits of any reasonable doubt, a doubt consistent with reason, the defendant is entitled to the benefit of it, and you should acquit him."
The following instructions, requested by defendant, were refused:
"(6) The defendant in this case is charged with having employed drummers to solicit patients for him, and, unless you find from the evidence, beyond a reasonable doubt, that he did so, you should acquit him. Any person has a perfect right to recommend visitors to a physician, and the physician has a perfect right to accept such patients and treat them without in any way violating the city ordinance. And, if a drummer should drum persons to a doctor, and a doctor should accept the patients and treat them, and he should know that they had been drummed to him, this would not make him guilty, unless he had employed the drummer to drum for him. And in this case it is essential to a conviction that the city prove beyond a reasonable doubt that the defendant had employed some one or more of the persons mentioned in evidence to drum for him, and, if it has failed in this, you should acquit him."
"(11) Although you may believe from the evidence that visitors were recommended or drummed to the defendant by Davis and others, this would not authorize you to convict him, unless the evidence shows beyond a reasonable doubt that he had employed some one or more of them to drum for him."
This was a prosecution had in the police court of the city of Hot Springs, based upon the following ordinance:
"Be it ordained by the city council of the city of Hot Springs:
"Section 1. That any physician or surgeon engaged in the practice of medicine in this city, who, for the purpose of procuring patients shall employ any solicitor, capper or drummer, or shall subsidize or employ any hotel or boarding house, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than $25 nor more than $200, and by the revocation of his license to practice medicine or surgery, which revocation shall be adjudged and pronounced by the police court in which he is tried and convicted at the same time.
"Sec. 2. That any physician or surgeon whose license to practice shall on conviction under the provisions of this ordinance have his license revoked, may appeal from the judgment of conviction but shall not, pending appeal, be permitted to practice medicine or surgery in this city, and if he does practice, or attempt to offer to so practice pending the appeal, he shall be punished in the same manner and to the same extent as if he had never had any license to practice."
Sections 3 and 4 are not material to the issues in this cause.
The following affidavit was filed before the police judge of the city of Hot Springs, on the 27th day of February, 1907, to wit: "City of Hot Springs v. O. S. Burrow, Defendant. Before P. S. Bentz, Police Judge. I, Harry E. Kane, do solemnly swear that the defendant did on the 27th day of January, 1907, in the city of Hot Springs, county of Garland, state of Arkansas, commit the offense of unprofessional conduct by then and there unlawfully employing a solicitor, capper, and drummer for the purpose of procuring patients; the said O. S. Burrow being then and there engaged in the practice of medicine in the said city of Hot Springs, Garland county, Arkansas, and I pray a warrant for said defendant O. S. Burrow, that he be apprehended and dealt with according to law. Harry E. Kane."
Thereupon the following warrant of arrest was issued: "State of Arkansas, County of Garland. Before P. S. Bentz, Police Judge. To the Chief of Police of Hot Springs: * * * You are hereby commanded to arrest O. S. Burrow and bring him before me to answer the charge made against him of having committed the offense of unprofessional conduct by unlawfully having employed a solicitor, capper or drummer as charged in the affidavit, on the 27th day of January, 1907. Given under my hand as police judge of Hot Springs, Garland county, Arkansas, this 28th day of February, 1907. P. S. Bentz, Police Judge."
Said warrant was duly served upon the defendant. The defendant appeared in police court on March 2, 1907, and the cause was continued for trial until March 4th, and afterwards until March 5th, at which time the cause was tried before the said P. S. Bentz, police judge, who found the defendant was guilty, a fine of $100 assessed, and his license to practice medicine revoked, from which judgment of conviction the defendant appealed to the circuit court. Upon the trial in the circuit court, the defendant filed his demurrer, in short, upon the record in the cause, which demurrer was by the court overruled, and the defendant saved his exception. Counsel for defendant renewed his demurrer and motion to dismiss the cause, upon the ground that there is no specific person mentioned in the affidavit or warrant whom Dr. Burrow is alleged as having employed; and that the information filed is vague and indefinite on that account, which motion and demurrer was by the court overruled, the defendant saved his exception, and the same was noted of record. The defendant was tried by a jury, who returned into court a verdict of guilty, fixing a fine of $25. Whereupon the trial court rendered judgment accordingly, and ordered that the license of the defendant to practice medicine and surgery
in this state be revoked, from which judgment of the court the appellant has prosecuted this appeal.
R. G. Davies, C. V. Teague, and Campbell & Stevenson, for appellant. Wood & Henderson, for appellee.
WOOD, J. (after stating the facts as above).
This court in Thompson et al. v. Van Lear, 77 Ark. 506, 92 S. W. 773, 5 L. R. A. (N. S.) 588, passed upon what is known as the "Gantt Law" (sections 5246-5250, Kirby's Dig.), and sustained the act as a proper exercise of the police power of the state in regulating the practice of medicine and surgery. That law makes it a misdemeanor for a physician to procure patients through what is designated "solicitors, cappers, or drummers," employed by him for the purpose; and the penalty prescribed by the act was intended to prohibit the drumming by doctors, in the manner set forth in the act. The ordinance under consideration was in conformity with the Gantt law, and the city council had authority, under ...
