Estep v. State

Decision Date05 January 1946
Citation192 S.W.2d 706,183 Tenn. 325
PartiesESTEP v. STATE.
CourtTennessee Supreme Court

Rehearing Denied March 2, 1946.

Error to Criminal Court, Shelby County; Robt. G. Kinkle, Judge.

William Estep was convicted of administering a toxic drug in violation of Pub.Acts 1945, c. 43, and he brings error.

Assignments of error overruled, and judgment affirmed.

On Petition for Rehearing.

Hugh Stanton, of Memphis, and J. J. Lutin and Albert Williams, both of Nashville, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

GAILOR Justice.

In the Criminal Court of Shelby County, defendant, who is a licensed naturopathic physician, was convicted of administering a toxic drug in violation of Chapter 43 of the Public Acts of 1945. Since that act provides no specific punishment for the offense, the trial judge applied sections 10755, 10756 of the Code, and in accord with those Code provisions, the defendant was sentenced to a fine of $500 and imprisonment in the county workhouse for 11 months and 29 days. From the conviction he has appealed and assigned a number of errors.

Defendant was arrested in Shelby County on April 13, 1945, and indicted by the grand jury of that County on April 17, 1945. The case was set for trial on May 14, 1945, and in the meanwhile the defendant was released from custody on bond of $1,500. When the case was called on May 14, 1945, the defendant failed to appear. On information supplied by the attorney general's office, the F.B.I. arrested defendant in Monterrey, Mexico and returned him to Laredo, Texas, whence Memphis officers brought him back to Memphis on the 10th day of June, 1945 and he was put on trial 8 days later on the 18th day of June 1945. On the morning of the trial his attorneys undertook to interpose (1) a motion for continuance, (2) a demurrer to the indictment, (3) a motion to set aside the forfeiture which had been declared on defendant's bond for his nonappearance. These motions were all overruled by the trial judge, and the defendant preserved his exceptions. After defendant entered a plea of not guilty, the case went to trial before a jury.

The first witness introduced by the state was one Harry Woodbury, a reporter for the Commercial Appeal, who testified that on the 6th day of April he went to 1970 Union Avenue, Memphis, Tennessee, and entered a building at that address which bore a sign, 'X-ray Clinic Physicians'. That the interior of the building had the aspect of a doctor's office, and that there was no sign or other indication that it was the place of business of a naturopathic physician. That the office was owned and operated by the defendant, William Estep, whom the witness identified in the court room. That he found defendant sitting behind a desk and was immediately greeted by him with the words, 'You look like you are in quite a bit of pain. What seems to be troubling you, sir?' Woodbury submitted to examination by defendant, who told the witness that 'he was eaten up with sinus;' that he had bad stomach ulcers and that his blood pressure was abnormally and dangerously high. Woodbury denied that actually he suffered from any of these complaints. Then after giving him certain electrical treatments, defendant gave Woodbury three prescriptions, one of which was for four ounces of sulfocyanate. Woodbury then left defendant's office after paying him $5 for the treatment and prescriptions.

Another witness for the state testified that the defendant had professionally prescribed sulfocyanate for his wife.

A druggist, who had a place of business near that of the defendant, testified that he had filled a number of prescriptions for sulfocyanate for different people on the order of the defendant. By the druggist and several doctors, it was proved that sulfocyanate was a very dangerous and toxic drug and that an overdose would result fatally in complete cardiac collapse.

The state also introduced evidence to show that the defendant was not licensed to practice general medicine and that he was licensed in naturopathy.

The defendant did not take the stand and introduced no evidence.

After argument and the charge of the court the jury brought in a verdict of guilty, fixing a fine of $500. The defendant made motion for a new trial which was overruled, and the defendant was sentenced to the fine of $500 and imprisonment in the county workhouse for 11 months and 29 days, as stated above.

Defendant has perfected an appeal and assigned errors. The first assignment of error, 'that there was no evidence to sustain the verdict,' is formal merely and requires no further consideration than that of the statement of the state's proof as we have given it above.

The second assignment, 'that the Court erred in striking Defendant's demurrer,' and the seventh assignment, 'that the Court erred in refusing the Defendant's application for a continuance,' may be conveniently considered together. This Court has frequently held that the matter of a continuance is within the sound discretion of the trial judge, and his action in refusing such continuance will not be reviewed by this Court except when an abuse of discretion is manifest. Here the defendant was indicted on April 17, 1945, and his trial set for May 14, 1945. Instead of preparing his case for trial, he elected to flee the jurisdiction of the court, and when the case was called for trial on May 14 he was apparently in Mexico. Under these facts the judge certainly did not abuse his discretion in denying a continuance. The same facts, no doubt, governed the trial judge in striking the demurrer and applying in strictness, the rule of the Criminal Court of Shelby County, that to be considered, the demurrer must have been filed 'not later than the Monday of the week preceding the date set for trial and presented in open Court not later than Thursday preceding the date set for trial.' If the defendant suffered any prejudice by denial of the application for the continuance and the striking of the demurrer, such prejudice was self-imposed. Defendant had secured more than a month's delay, from May 14 to June 18, by his own wrong; and it was defendant's flight, and no action of the trial judge that prevented preparation of the case for trial or timely action on the demurrer to the indictment.

However, no reflection for lack of diligence should be cast on defendant's present attorneys on this account, because they were not employed until after his recapture and deturn to Memphis. We find no abuse of discretion by the trial judge in overruling the application for a continuance (Ross v. State, 130 Tenn. 387, 390, 170 S.W. 1026; Fox v. State, 111 Tenn. 154, 76 S.W. 815), and striking the demurrer to the indictment under the local rules of his court (Code, § 10330), and these assignments are overruled.

We respond next to assignments 3, 4, 5 and 6, which assail the action of the trial judge in overruling certain special requests presented by the defendant. To consider these assignments, a brief summary of the history of legislation licensing naturopathic physicians in Tennessee is necessary.

Naturopaths were first licensed in Tennessee under Chapter 49, Public Acts of 1943, under which licensees might practice 'Nature cure or health by natural methods,' which was in that act defined to be:

'* * * the prevention, diagnosis, and treatment of human injuries, ailments, and diseases by means of any one or more of the psychological, physical or mechanical, chemical or material, forces or agencies of nature.'

It was found that the licensees construed this language to include the right to give any medical treatment and perform any surgical operation. This was not an entirely unreasonable or impossible construction of the broad scope of the glittering generality of the language used in the act.

The legislature, therefore, at its session of 1945, undertook to correct this situation and limit the treatments and operations that might be lawfully given and performed by a licensed naturopath. From a comparison of the act of 1943 with the amendatory act of 1945, it clearly appears that the sole legislative intent in passing the amendment of 1945 was to limit the things that might be lawfully done under a license to practice naturopathy. The legislature went farther in the amendment than merely to 'define' or 'explain', and after reciting what might be lawfully done, expressly prohibited the doing of certain things among which was the administration of toxic drugs. This is clear from the language of the amendment:

"Nature cure or health by natural methods' (and) is defined as the prevention, diagnosis, and treatment of human injuries, ailments, and diseases by the use of such physical forces, as air, light, water, vibration, heat, electricity, hydrotherapy, psychotherapy, dietitics, or massage, and the administrations of botanical and biological drugs, but shall not include the administration of narcotics, sulfa drugs and other toxic drugs, or powerful physical agents, such as X-ray and radium therapy, or surgery * * *.' (Emphasis ours.)

If, as defendant insists, the only purpose of the amendment was to define or explain naturopathy, the legislature would reasonably have stopped its definition of naturopathy after the words 'biological drugs' in the foregoing quotation. But we think it clear that the legislative intent went further since it added to the complete definition, the express prohibition of administering toxic drugs and using X-ray and radium therapy.

We agree with the rules stated by defendant that penal definitive and explanatory statutes and those which restrain a citizen in the conduct of a trade or profession, are to be strictly construed and not extended by implication. But no matter how strictly w...

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  • Waters v. Farr
    • United States
    • Tennessee Supreme Court
    • July 24, 2009
    ...201 Tenn. 270, 275, 298 S.W.2d 724, 726 (1957). 19. Kirk v. Olgiati, 203 Tenn. 1, 7, 308 S.W.2d 471, 474 (1957); Estep v. State, 183 Tenn. 325, 335, 192 S.W.2d 706, 710 (1946). 20. Draper v. Westerfield, 181 S.W.3d at 290; Wausau Ins. Co. v. Dorsett, 172 S.W.3d 538, 543 21. Nashville Mobilp......
  • Hamilton Nat. Bank v. Woods
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    • Tennessee Court of Appeals
    • September 17, 1948
    ... ... This ... motion was supported by the affidavit of W. E. Wilkerson, ... who, in substance, deposed that M. S. Woods was then out of ... the State, and that upon an examination of the Chancery Court ... proceedings, and to the best of his knowledge, information ... and belief, the $1,500 paid ... Gulf, M. & O. R. Co. v. Underwood, 182 Tenn. 467, ... 187 S.W.2d 777; Jones v. Witherspoon, 182 Tenn. 498, ... 187 S.W.2d 788; Estep v. State, 183 Tenn. 325, 192 ... S.W.2d 706; City of Knoxville ... [238 S.W.2d 116] ... v. Hargis, 184 Tenn. 262, 198 S.W.2d 555; ... ...
  • State v. Darling
    • United States
    • Kansas Supreme Court
    • January 22, 1972
    ...other states with similar laws have held that prescribing drugs is administering them for purposes of the statute. In Estep v. State, 183 Tenn. 325, 192 S.W.2d 706, the Supreme Court of Tennessee held that where the defendant, a naturopathic physician, who professionally prescribed toxic dr......
  • State v. Zylstra, 60522
    • United States
    • Iowa Supreme Court
    • March 22, 1978
    ...or his surety. People v. Johnson, 155 Colo. 392, 395 P.2d 19; State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522; Estep v. State, 183 Tenn. 325, 339, 340, 192 S.W.2d 706, 712. Generally the authorities are in agreement. Restatement, Security, sections 207, 209; 10 Appleman, Insurance Law and P......
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