Harvey v. State

• Decision Date: 26 September 1914
• Docket Number: 18,434
• Citation: Harvey v. State, 96 Neb. 786, 148 N.W. 924 (Neb. 1914)
• Parties: EARLE A. HARVEY v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

148 N.W. 924

96 Neb. 786

EARLE A. HARVEY v. STATE OF NEBRASKA

No. 18,434

Supreme Court of Nebraska

September 26, 1914

ERROR to the district court for Thayer county: LESLIE G. HURD JUDGE. Reversed in part and affirmed in part.

Judgment reversed in part and affirmed in part.

C. L Richards and Sol L. Long, for plaintiff in error.

Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.

SEDGWICK J. REESE, C. J., HAMER, J., dissenting.

OPINION

SEDGWICK, J.

The defendant was convicted of practicing medicine without a license on each of nine several counts in the information. He was sentenced by the court to pay a fine of $ 50 on each count, amounting to $ 450, and he has brought the case here for review upon petition in error.

1. The defendant's first complaint is that the information does not charge an offense. The reason for this objection stated in the brief is that it "does not inform the defendant whether he is charged with the violation of the medical practice act, article II of chapter 27, or article VIII, commencing with section 2788, being the article of the statute governing osteopathy." Each count of the information contains this allegation: "Did then and there for remuneration unlawfully practice medicine by unlawfully treating and attempting to heal one (name of patient) for a bodily ailment through the manipulation and adjustment with the hands by the said Earle A. Harvey, of certain nerves, bones and tissues of the body of the said (name of patient) without first having issued to him, the said Earle A. Harvey, by the state board of health of the state of Nebraska, a certificate or license to practice medicine."

Section 2717, Rev. St. 1913, begins with these words: "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 applied for and obtained from the state board of health a license so to do."

Section 2723 is as follows: "Any person not possessing the qualifications for the practice of medicine, surgery, or obstetrics, required by the provisions of this chapter, or any person who has not complied with the provisions of this chapter who shall engage in the practice of medicine, surgery, or obstetrics, or any of the branches thereof, in this state, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than fifty dollars, nor more than three hundred dollars, and costs of prosecution for each offense."

Section 2724 provides: "Any person shall be regarded as practicing medicine, within the meaning of this chapter, who shall operate on, profess to heal or prescribe for, or otherwise treat any physical or mental ailment of another." The information without doubt charges offenses under these sections.

2. It is said that "the offense of practicing medicine under our statute without a license is a continuing offense," and it is therefore contended that the information charges but one offense, that of engaging in the practice of medicine, and that the court should have required the prosecution to elect upon which count of the information it would rely. In Little v. State, 60 Neb. 749, 84 N.W. 248, the information contained 16 counts, and it was held that the court did not err in refusing to require the prosecution to elect. Three counts in the information in the case at bar charged treatment of the same individual, but these treatments were on different days, and not dependent upon each other, and each was a violation of the law, within the decision in the Little case.

3. The second count of the information charged defendant with treating "Baby Mitchell, the unchristened infant." There is no evidence that defendant was paid or expected any remuneration for treating this child. He seems to have been spoken to about the condition of the child as a friend of the family, and it is very uncertain from the evidence what, if anything, he did that might be considered a treatment. This count is not sustained by the evidence.

4. Much is said in the brief about the "liberty of the citizens to follow a profession" and to "pursue a lawful calling in a lawful manner." It is said that the state cannot "prohibit any calling or profession, save and except it be detrimental to public welfare, public morals public health, or a disturbance of the public peace. The state may not indirectly prohibit what it cannot prohibit directly, i. e., it may not prohibit the exercise and practice of chiropractic by refusing to provide an examination in the curriculum...