Harding v. People

• Decision Date: 11 November 1887
• Citation: 10 Colo. 387,15 P. 727
• Parties: HARDING v. PEOPLE.
• Court: Colorado Supreme Court

15 P. 727

10 Colo. 387

HARDING v. PEOPLE.

Supreme Court of Colorado

November 11, 1887

Error to criminal court, Arapahoe county.

Eliza J. Harding was arraigned and tried on an information filed by the district attorney in the criminal court of Arapahoe county, in which information she was charged with unlawfully practicing medicine and surgery, without having received from the state board of medical examiners of the state of Colorado a certificate authorizing her to practice medicine and surgery in said state. The information contained two counts the second of which charges her with unlawfully practicing medicine and surgery without having presented to the state board of medical examiners for verification a diploma from a legally chartered medical school, and without having furnished to said board other evidence conclusive of her being a graduate of a legally chartered medical school in good standing. In other respects the second count is like the first. The trial ended in conviction, and the imposition of a fine of $100, and costs. The defendant below brings the cause to the supreme court by writ of error. The further facts sufficiently appear in the opinion of the court.

Matt Adams, for plaintiff in error.

The Attorney General, for defendant in error.

ELBERT J.

It appears that after the jury in this case had retired to consider their verdict, the court adjourned until the following day; that during the adjournment the jury returned into the court-room, and, in the presence of the judge and clerk, returned their verdict of guilty, and that thereupon the judge discharged the jury from further attendance in the cause, and, on the incoming of the court the following day ordered the verdict to be recorded, and to stand as the verdict in the cause. We think this was error. The agreement of counsel, which was entered upon the minutes of the court, was limited to the one stipulation, viz.: 'That the verdict herein may be received though the defendant be not present.' It does not appear to have been made with reference to, and does not comply with, section 962, Gen. St., which provides 'that, in every case of misdemeanor only, if the prosecutor for the people and the person on trial, by himself or counsel, shall agree, which agreement shall be entered on the minutes of the court, to dispense with the attendance of an officer upon the jury, or that the jury, when they have agreed upon their verdict, may write and seal the same, and, after delivering the same to the clerk, may separate, it shall be lawful for the court to carry into effect any such agreement, and receive any such verdict delivered to the clerk as the lawful verdict of any such jury.' A similar provision in the statutes of Illinois has been held to allow the jury, its provisions having been complied with, not only to withdraw from the charge of the officer, but to seal their verdict and separate as an organized jury. Reins v. People, 30 Ill. 272. In the absence of the agreement provided for by this section, we know of no authority that authorized the judge to receive the verdict and discharge the jury during the adjournment. At common law, in trials for misdemeanors, a privy verdict was allowed, and there was no occasion for the presence of the defendant. 1 Chit. Crim. Law, 636. But a privy judgment only contemplated the separation of the jury until the meeting of the court, when their verdict was received in open court from the lips of the foreman, and recorded in the usual way. This finding in open court was what decided the rights of the parties, and was what was admitted to record. Dornick v. Reichenback, 10 Serg. & R. 90. Except in the case of the agreement provided for in the section to which we have referred, we think the law requires in all criminal cases that the jury return to and declare their verdict in open court. Whether, in cases not capital, the jury may not be allowed, upon agreement of parties, to deliver their verdict when found, to the judge or clerk, and separate until the incoming of court, is a question we are not to be understood to be deciding. Reins v. People, 30 Ill., supra.

For the following reasons the judgment of the court below must be reversed, and the cause remanded. Some of the other assignments of error present questions which will necessarily arise upon a new trial, and in that view we deem it advisable to notice them.

The act under which the plaintiff in error, the defendant below, was convicted, is entitled 'An act to protect the public health and regulate the practice of medicine in the state of Colorado.' Gen. St. 773. By its provisions, the legislature has attempted to protect the public from the evils arising from the practice of medicine and surgery by persons not qualified. No question is made respecting the general power of the legislature to pass acts of this character, nor can any question be made touching the wisdom and necessity of laws securing protection to the public in this most vital matter. We do not see, as is claimed, that the provisions of the act are in conflict with section 2, art. 4, of the constitution of the United States, which provides that 'the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,' or with that part of the fourteenth amendment which provides that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'

The act we are considering makes medical qualification the test of the right to practice medicine and surgery, and the field is open to all persons who possess the qualifications prescribed by the act. We find nothing in its provisions inconsistent with that rule of equality which the constitutional provisions we have quoted prescribe. Touching a like question, under a similar statute, it is said: 'Under the provisions of the constitution of the United States, every citizen has the undoubted right to pursue any lawful profession, calling, or employment, in a lawful manner; but these pursuits are always subject to such restrictions as may lawfully be prescribed by the legislature of each state, in order to protect the public health and promote the general interests of society, and, as long as such restrictions leave the field open for every citizen of the United States who comes endowed with all the necessary qualifications to practice his profession, pursuit, or calling, the law cannot be declared unconstitutional.' Ex parte Spinney, 10 Nev. 336.

It is also urged that the title of the law contains two subjects of legislation, in contravention of section 21, art. 5, of the constitution, which declares that 'no bill, except general appropriation bills, shall be passed containing more than one...