Fealy v. City of Birmingham

• Decision Date: 19 October 1916
• Docket Number: 6 Div. 29
• Citation: 73 So. 296,15 Ala.App. 367
• Parties: FEALY v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

73 So. 296

15 Ala.App. 367

FEALY v. CITY OF BIRMINGHAM.

6 Div. 29

Court of Appeals of Alabama

October 19, 1916

Rehearing Denied Nov. 14, 1916

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

L.A Fealy was convicted of practicing medicine without a license contrary to an ordinance of the city of Birmingham, and he appeals. Reversed and remanded.

The complaint charged that L.A. Fealy, within 60 days before the arrest in this case, and before the commencement of this prosecution, and within the city of Birmingham, did treat or offer to treat N.R. Keeling, a human being, of and for gallstones, organic heart trouble, or other diseases of human beings, without having first obtained a certificate of qualification from the state board of medical examiners, against the laws and ordinances of the city of Birmingham. The demurrers raise the question that the law or ordinance which the defendant is charged with violating is unconstitutional and void as in contravention of the Bill of Rights of the Constitution of the state of Alabama, and of the Constitution of the United States; that it is insufficient to advise defendant of what he is charged with and what offense he is to defend against; the complaint charges in the alternative that defendant did treat or offer to treat a human being, and defendant is not advised as to which averment he is to stand trial for; the complaint fails to set out or show the system of treatment used or offered to be used by defendant on said Keeling. The pleas were as follows:

(2) Defendant says he is not guilty of the charge filed against him in this cause, in this: That in the treatment of said Keeling as alleged in this complaint this defendant was practicing and putting in effect his religious faith and doctrine as set forth and promulgated by the Altrurian Church of which this defendant is a bishop, and a preacher, and which he has a right to do as guaranteed to him by virtue of the declaration of rights, article 1, Constitution, state of Alabama.

(3) This defendant was exercising his religion as embraced in the teachings of the Altrurian Church, or religious society, of which defendant was a bishop or preacher, and to enforce the law or ordinance as is sought to be done in this case, is violative of article 1 of the amendments to the Constitution of the United States, and section 1, art. 14, of amendments of Constitution of United States.

The following charges were refused to defendant:

(38) If there a reasonable probability of defendant's innocence, then this is a just foundation for a reasonable doubt, and authorizes an acquittal.

(39) The absence of sufficient satisfactory evidence before the jury may afford grounds for reasonable doubt of defendant's guilt.

(43) Although there may not be a probability of innocence, a reasonable doubt may exist which would entitle defendant to an acquittal.

(44) If the jury find from the evidence that the treatment which defendant gave to witness Keeling was only to put his hand on his head and over his heart, and prescribe periods of prayer and rest, and that this was practicing by defendant of his religion as taught by the Altrurian Church, they must find for defendant.

(45) If the jury believe from the evidence that the defendant in treating said Keeling was practicing his religion in good faith and not practicing any system of medicine, they cannot find the defendant guilty.

(46) Practically same as 45.

(47) If the jury believe from the evidence that defendant in treating said Keeling, it matters not if the jury considers what he did to be without merit, was practicing his religion as taught by the Altrurian Church, and that he was a member or bishop of that church, they must find defendant not guilty.

Oscar R. Hundley and F.E. Blackburn, both of Birmingham, for appellant.

Romaine Boyd, M.M. Ullman, and W.A. Jenkins, all of Birmingham, for appellee.

EVANS, J.

This appeal is prosecuted from a judgment convicting appellant of practicing medicine without having first obtained a certificate from the state board of medical examiners contrary to an ordinance of appellee.

Numerous errors are assigned upon the record; but a number of them are not noticed in the brief of appellant. Such assignments as counsel ignore, we treat as having been waived and pretermit discussion thereof. Johnson's Case, 152 Ala. 93, 44 So. 671; Rosenau v. Powell, 184 Ala. 396, 63 So. 1020.

Error cannot be predicated upon the refusal of the trial court to quash an indictment or complaint, as it is within the irrevisable discretion of the court whether it will put defendant to his demurrer or plea in abatement, as the case may be. Josiah Clark's Case, 72 So. 291; Johnson's Case, 134 Ala. 54, 32 So. 724. The appellant had the benefit, however, of the same questions on demurrer that were urged on the motion to quash. We are of opinion that the complaint set forth an offense sufficiently pleaded, and is not subject to the infirmities claimed in the demurrers.

By a blanket, or omnibus, provision of Ordinance No. 181, city of Birmingham, all misdemeanors against the laws of the state are also made offenses against that city. This same ordinance (No. 181) was upheld in Sloss-Sheffield Steel & Iron Co. v. Smith, 175 Ala. 260, 57 So. 29. The statute against practicing medicine without having obtained a certificate from the state board of medical examiners is to be found in Code, § 7564, which makes it a misdemeanor for any person, without such certificate, "to treat or offer to treat diseases of human beings by any system of treatment whatsoever." The charge here (omitting time and venue) is that appellant "did treat or offer to treat N.R. Keeling, a human being, of and for gallstones, organic heart trouble, or other diseases of human beings without having first obtained a certificate of qualification from the state board of medical examiners, against the laws and ordinances of the city of Birmingham." It has been frequently held that in charging a statutory offense, the offense is sufficiently pleaded if set forth in the language of its creation. Mason and Franklin's Case, 42 Ala. 543; Yancy's Case, 63 Ala. 141; Trayler's Case, 100 Ala. 142, 14 So. 634; Johnson's Case, 152 Ala. 46, 44 So. 670; Kimbell's Case, 165 Ala. 118, 51 So. 16.

It is objected that the complaint was not sworn to. The record does not disclose the affidavit before the recorder of the city of Birmingham; but the complaint filed in the circuit court. The procedure in misdemeanor appeals from county courts or justices of the peace (and appeals from recorders' courts, in the absence of special provision, fall within the latter classification) is that the case is tried de novo, at which "a brief statement of the cause of complaint" signed by the solicitor shall be filed. See the following sections of the Code, in the order named: 1451, 6744, 6730. The design and purpose of such complaint is to definitely apprise the defendant of the nature and cause of the accusation, and it is not intended that it should be verified. The procedure presupposes a valid affidavit in the recorder's court; at least it was the right of the defendant to demand a verified complaint in that forum, and his failure in that behalf has been construed as a waiver, and that the objection came too late upon the trial in the circuit court. Vide Aderhold v. Anniston, 99 Ala. 521, 12 So. 472; McKinstry v. Tuscaloosa, 172 Ala. 344, 54 So. 629; Turner v. Lineville, 2 Ala.App. 454, 56 So. 603.

We are not impressed with the demurrers challenging the constitutionality of the ordinance; the regulation of the practice of medicine is a valid exercise of the police power. 30 Cyc. 1547(A), 8 Cyc. 900(i); Brook's Case, 88 Ala. 122, 6 So. 902; Bell's Case, 104 Ala. 79, 15 So. 557.

It is insisted that the trial court erred in sustaining demurrers to defendant's special pleas numbered second and third. (The reporter will set the pleas out.) The matter raised by these special pleas was equally available under the plea of not guilty; and, even assuming, for the sake of argument, that the demurrers were improperly sustained, the error would be without injury (Beauvoir Club

v. State, 148 Ala. 643, 652 12 So. 1040, 121 Am.St.Rep. 82); but we do not think the demurrers were improperly sustained. The question to be determined is not whether defendant practiced his religion in treating Keeling, but whether defendant practiced medicine, within the meaning of the statute. Assuming that one brings himself within the...