Com. v. Jewelle

• Decision Date: 19 October 1908
• Parties: COMMONWEALTH v. JEWELLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 558

85 N.E. 858

COMMONWEALTH v. JEWELLE.

Supreme Judicial Court of Massachusetts, Hampden.

October 19, 1908

COUNSEL

S. S. Taft, for the Commonwealth.

R. J Talbot, for defendant.

OPINION

KNOWLTON C.J.

The defendant was convicted under a complaint charging him with a violation of Rev. Laws, c. 76, § 8, by practicing medicine in this commonwealth without being lawfully authorized so to do. There was conflicting evidence at the trial in regard to what he had done. To quote from the judge's charge: 'The commonwealth says, also, that upon different occasions the defendant has prescribed medicines and administered, and advertised that he prescribed as a part of his treatment what he called 'vitalizer,' and that he has been in the habit of giving what are called electric or ray baths and that on one or more occasions in the giving of what was called the stomach wash, another substance than water was in the tumbler, which was taken by the patient.' There was also evidence that on different occasions he 'did make a diagnosis of the patients, for the purpose of ascertaining what ailed them and that then he prescribed for them treatment which was afterward administered to them.' The defendant did not admit this. In his charge the judge said: 'The defendant does not claim that he has any knowledge of drugs or of disease in the ordinary sense in which that word is used. I understand him to testify that he did not understand about diseases, that he did not treat disease; but that he treated the healthy portion of the body.'

The defendant asked the court to rule that 'there is no law against a person being a mind cure healer, or a massage healer, or an osteopathist; he can practice his healing so long as he did not prescribe or deal out medicine.' The defendant excepted to the refusal of the judge to give in terms the last part of this request. He also excepted to the 'rulings and refusals to rule.'

This exception cannot avail the defendant to open objections to the charge as a whole, or to statements in the charge on matters to which the judge's attention was not called by the defendant. Curry v. Porter, 125 Mass. 94; Com. v. Meserve, 154 Mass. 64-65, 27 N.E. 997. Under the decision in Brick v. Bosworth, 162 Mass. 334, 39 N.E. 36, nothing more than the refusal of the request and the rulings given upon the specific matters to which attention was called by the request is opened by such an exceptions.

The first part of the request was plainly covered by the judge's charge. As to the last clause of the request, the charge was, in substance that such a person can practice his healing or treatment in either of these ways, so long as he does not go beyond the practice or treatment that is fairly included in such of these methods as he adopts, and practice medicine within the meaning of Rev. Laws, c. 76, § 8 otherwise than by using one or more of these methods. The defendant's request implied that one could not practice medicine within the meaning of the words in section eight without prescribing or dealing out medicine, that is, prescribing or dealing out a substance used as a remedy for disease. The judge allowed the jury to find...