Hughes v. State Board of Medical Examiners

• Decision Date: 16 February 1928
• Docket Number: 5871,5872.
• Parties: HUGHES v. STATE BOARD OF MEDICAL EXAMINERS (two cases).
• Court: Georgia Supreme Court

142 S.E. 285

165 Ga. 892

HUGHES v. STATE BOARD OF MEDICAL EXAMINERS (two cases).

Nos. 5871, 5872.

Supreme Court of Georgia

February 16, 1928

Syllabus by Editorial Staff.

In proceedings by the state board of medical examiners to revoke license of physician for having used mails to defraud and circulated prohibited advertisements, it was not error to strike jury from criminal panel rather than from civil list qualifications of jurors being the same.

Overruling of motion to declare mistrial on ground that counsel for state board of medical examiners stated in presence of jury that he was willing to take either criminal or civil panel in trial of proceeding to revoke license of physician was not prejudicial to physician, where jury did not finally pass on issues involved, but court directed verdict.

Exception to ruling of court that certain notice was sufficient does not properly raise any question for decision by Supreme Court, where notice was not set out literally or in substance in motion or attached thereto as an exhibit, nor renewal of notice set out in ground of motion or so attached.

In proceedings by state board of medical examiners to revoke license of physician for having used mails to defraud and circulated prohibited advertisements, indictment and sentence of defendant in United States District Court for crime of using mails to defraud in violation of Federal Penal Code, § 215 (18 USCA § 338), were properly admitted in evidence over objection that evidence did not establish charge on which to base revocation of license, in view of Laws 1913, p. 107, § 14, as amended by Ga. Laws 1918, p. 182, § 8.

In proceedings by state board of medical examiners to revoke license of physician for having used mails to defraud and circulated prohibited advertisements, sentence by federal court in prosecution for using mails to defraud in violation of Federal Penal Code, § 215 (18 USCA § 338), offered separately and being in accordance with statute, was properly admitted.

In proceedings by the state board of medical examiners to revoke license of physician for having used mails to defraud and circulated prohibited advertisements, petition by defendant physician to enjoin board from hearing charges, to which was attached copy of pamphlet, with publication and circulation of which defendant was charged, and which constituted one of grounds for revocation of license, was properly admitted on review in superior court.

In proceedings by state board of medical examiners to revoke license of physician for having used mails to defraud and circulated prohibited advertisements, admission in evidence of recitals from briefs held not harmful to physican, where recitals contained facts shown by admissions of physician in his petition for injunction against state board and by evidence introduced by physician.

In proceedings by state board of medical examiners to revoke license of physician for having used mails to defraud and circulated prohibited advertisements, pamphlet having same contents as pamphlet attached to original charges against physician, which were part of record in case, held properly admitted in evidence.

In proceedings by state board of medical examiners to revoke license of physician for having used mails to defraud and circulated prohibited advertisements, passages from publications of United States Public Health Service and Georgia State Board of Health, though containing matter similar to that found in pamphlets which physician was charged with publishing and circulating, held properly excluded from evidence as irrelevant and immaterial.

In proceedings by state board of medical examiners to revoke license of physician for having used mails to defraud and circulated prohibited advertisements, evidence that defendant was of recognized ability as practitioner and showing his fitness for practice of medicine held properly excluded.

In proceedings by state board of medical examiners to revoke license of physician for having used mails to defraud and circulated prohibited advertisements, direction of verdict against physician, demanded by evidence, was proper, though physician had been pardoned for offense of using mails to defraud, for which he had been convicted in federal court since pardon though restoring civil rights did not remove conviction, which is sufficient ground under Laws 1913, p 101, as amended by Laws 1918, p. 173, for revoking license.

Laws 1913, p. 101, as amended by Laws 1918, p. 173, establishing board of medical examiners for state, and providing for hearing of charges against physicians, held not unconstitutional.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Separate proceedings by the State Board of Medical Examiners against T. W. Hughes and N. A. Hughes. Defendants were found guilty on the charges preferred, and, on appeal to superior court judgments canceling and revoking defendants' licenses were rendered, and defendants' motions for new trials were overruled, and they separately bring error. Affirmed.

See, also, 162 Ga. 246, 134 S.E. 42; 162 Ga. 267, 134 S.E. 49.

Norman I. Miller, of Atlanta, for plaintiffs in error.

J. Z. Foster, of Marietta, for defendant in error.

Syllabus OPINION.

BECK P.J.

These two cases were argued together, and the same questions are raised in each record; and, where the plaintiff in error, Hughes, is referred to, it includes the plaintiff in error in each case. The state board of medical examiners, upon the trial of charges against Hughes, revoked his license to practice medicine, and from this judgment an appeal was taken to the superior court of Fulton county. The charges preferred against Hughes were two in number; the first one being that on March 5, 1915, he was convicted of a crime involving moral turpitude, upon an indictment which charged him with the offense of using the United States mails in furtherance of a scheme to defraud, and conspiracy, as set forth in the indictment, a copy of which was attached; the second charge being that Hughes caused the publication and circulation of an advertisement relative to diseases of the sexual organs, by means of pamphlets distributed by him to persons and to the public, both by mail and by hand, in the city of Atlanta and throughout the country during the year 1923, and previous thereto, during the period of his registration as a practicing physician. It was further alleged that at the time of the conviction and circulation of this advertisement Hughes was a licentiate, and registered in the office of the clerk of the superior court of Fulton county as a person lawfully engaged in the practice of medicine within the state of Georgia. These...