O'Connor v. State

• Decision Date: 15 October 1895
• Docket Number: 6849
• Citation: 64 N.W. 719,46 Neb. 157
• Parties: THOMAS O'CONNOR v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

64 N.W. 719

46 Neb. 157

THOMAS O'CONNOR v. STATE OF NEBRASKA

No. 6849

Supreme Court of Nebraska

October 15, 1895

ERROR to the district court for Lancaster county. Tried below before TIBBETS, J.

REVERSED AND REMANDED.

Charles A. Robbins, for plaintiff in error:

The information does not state an offense under the law. (Gee Wo v. State, 36 Neb. 241.)

The verdict of the jury and judgment of the court are not sustained by the evidence. (People v. Phippin, 37 N.W. [Mich.], 888.)

The act under which the information was filed is unconstitutional. (People v. Phippin, 37 N.W. [Mich.], 898; Constitution, United States, sec. 2, art. 4, sec. 1, art. 14; Constitution, Nebraska, secs. 1, 3, art. 1; Taylor v Porter, 4 Hill [N. Y.], 147; Poppen v. Holmes, 44 Ill. 360; In re Graduates, 11 Abb. Pr. [N. Y.] 301; In re Railroad Commissioners, 15 Neb. 679.)

A. S Churchill, Attorney General, contra, cited: State v. Hathaway, 21 S.W. [Mo.], 1081.

W. H. Woodward and F. W. Collins, also for the state.

OPINION

The facts are stated in the opinion.

HARRISON, J.

The plaintiff in error was tried in the district court of Lancaster county on a charge of practicing medicine in said county without first obtaining a certificate and filing the same or a copy thereof in the office of the county clerk, and was convicted and sentenced. The information was as follows:

"Be it remembered that Novia Z. Snell, county attorney in and for Lancaster county and the third judicial district of the state of Nebraska, who prosecutes in the name and by the authority of the state of Nebraska, comes here in person into court at this, the February term, A. D. 1892, thereof, and for the state of Nebraska gives the court to understand and be informed that one Thomas O'Connor, late of the county aforesaid, on the 1st day of March, 1892, and thereon continuously until the 28th day of April, A. D. 1892, in said county of Lancaster and state of Nebraska aforesaid, did unlawfully practice medicine without having first obtained a certificate from the state board of health and filing it, or a copy thereof, in the office of the county clerk of Lancaster county, that being the county in which the said Thomas O'Connor at all times herein mentioned resided and in which he practiced medicine as aforesaid.

"Second Count.--And the county attorney aforesaid, by the authority aforesaid, shows to the court by a second and further count that one Thomas O'Connor, on the 8th day of December, 1891, in the county of Lancaster and state of Nebraska, did unlawfully practice medicine without having first obtained a certificate from the state board of health and filing it, or a copy thereof, in the office of the clerk of Lancaster county, that being the county in which the said Thomas O'Connor at all times herein mentioned resided and in which he practiced medicine as aforesaid.

"Third Count.--And the county attorney aforesaid, by the authority aforesaid, shows to the court by a further and third count that one Thomas O'Connor, on the 9th day of December, 1891, and then continually until the 1st day of January, 1892, in the county of Lancaster and state of Nebraska, did unlawfully practice surgery without having first obtained a certificate from the state board of health and filing it, or a copy thereof, in the office of the clerk of Lancaster county, that being the county in which the said Thomas O'Connor at all times herein mentioned resided and in which he practiced surgery as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska."

There was a stipulation filed in which it was agreed that the second count of the information was to be ignored and the prosecution to rest upon the first and third counts, and if convicted the sentence was to be for the charge in but one, either the first or third of the counts of the information.

It is contended that there was no sufficient statement of an offense in the information, in that it does not negative certain exceptions contained in a section of the statutory provisions under which the prosecution was instituted; that the exceptions referred to were of such a character as to enter into and become necessary parts of the description of the offense, and being omitted in the information, it did not state the offense; that an information precisely similar to this one, except as to names and dates, was considered and passed upon by this court in the case of Gee Wo v. State, 36 Neb. 241, 54 N.W 513, and within the rule therein announced held not to state an offense. The doctrine stated in that case was as follows: "In charging an offense under a statute the general rule is that a negative averment of the matter of a proviso is not required in an information unless the matter of such proviso enters into and becomes a part of the description of the offense or is a qualification of the language defining or creating it. Where, however, the matters of the proviso point directly to the character of the offense, or where the statute includes two or more classes which will be affected thereby, such as physicians who remove into the state to practice after the passage of an act to regulate the practice of medicine, and persons who were residing in the state and practicing under a former act, in such cases the information must show on its face that the accused does not belong to either class." By an act of the legislature of 1891 there was established a state board of health, and it was made one of the duties of this board to see that all the provisions of the act were strictly enforced, and to grant certificates to qualified persons to engage in the practice of medicine, surgery, or obstetrics, or any of the branches thereof, on compliance with the requirements of the act and furnishing the proof of such qualifications, among which is that the applicant be a graduate of a legally chartered medical school or college in good standing and the possession of a diploma attesting such fact. Section 7 of the act is as follows: "It shall be unlawful for any person to practice medicine, surgery, or obstetrics, or any of the branches thereof, in this state without first having obtained and registered the certificate provided for by this act; and no person shall be entitled to a certificate herein provided for unless he shall be a graduate of a legally chartered medical school or college in good standing; said qualifications to be determined by the board; Provided, however, That nothing in this act shall be construed to prevent physicians residing in other states from visiting patients in consultation with resident physicians who have complied herewith." Sections 9 and 10 provide what proof of qualifications shall be produced,...