Melville v. State

• Decision Date: 28 October 1909
• Docket Number: No. 21,368.,21,368.
• Citation: 173 Ind. 352,89 N.E. 490
• Parties: MELVILLE v. STATE.
• Court: Indiana Supreme Court

173 Ind. 352

89 N.E. 490

MELVILLE

v.STATE.

No. 21,368.¹

Supreme Court of Indiana.

Oct. 28, 1909.

Appeal from Criminal Court, Marion County; James A. Pritchard, Judge.

Alansing B. Melville was convicted of practicing medicine without a license, and he appeals. Affirmed.Charles E. Barrett, Fred E. Barrett, and Americus B. Melville, for appellant. James Bingham, Frank E. Gavin, James L. Gavin, Paul Davis, A. G. Cavins, E. M. White, W. H. Thompson, and E. R. Hooton, for the State.

HADLEY, J.

Appellant was convicted on an affidavit and information for practicing medicine without a license, in violation of section 8410, Burns' Ann. St. 1908, which reads as follows: “Any person who shall practice medicine, surgery, or obstetrics in this state without having a license duly issued as hereinbefore provided shall be deemed guilty of a misdemeanor and upon conviction fined,” etc. Appellant's motion to quash the affidavit and information was overruled, which ruling is properly questioned by the assignment of error.

It is charged in the affidavit that the appellant is a resident of Marion county, Ind., and that on November 1, 1906, at said county and state, he did then and there engage in the practice of medicine, he not having then and there a license to practice medicine under the laws of the state of Indiana. This charge fully conforms to that provision of the statute which appears in these words: “In charging any person, in an affidavit, information, or indictment, with a violation of this law by practicing medicine, surgery, or obstetrics without a license, it shall be sufficient to charge that he did upon a certain day, and in a certain county, engage in the practice of medicine, he not having any license to do so, without averring any further, or more particular facts concerning the same.” Section 8409, Burns' Ann. St. 1908. Besides, this holding is in line with Parks v. State, 159 Ind. 211, 64 N. E. 862, 55 L. R. A. 190, to which we adhere. The motion to quash was properly overruled.

Upon the overruling of his motion to quash, appellant filed a special plea in bar, in effect that on March 11, 1901, at the time of the passage of the act under which he is being prosecuted, he was, and for many years before had been, a bona fide resident of Indiana, and the holder of a diploma duly granted and issued to him by the National School of Osteopathy, located in Chicago, Ill.; that on April 3, 1901, and after said act had come to be in full force and effect, he presented and delivered his said diploma to the State Board of Medical Examination, in accordance with the requirements of said act, and paid to said board the license fee required by said act, and there was thereupon issued to him by said board the following “certificate”: “Office of State Board of Medical Registration and Examination, Indianapolis, April 3, 1901. Received of Alansing B. Melville, ten dollars in payment of legal fee upon diploma for certificate. W. F. Curryer, Sec'y”-that since the issuance thereof he has been acting under and in the pursuance of said certificate; that he has complied with the law, and his diploma, which is in full force and effect, is still in possession and custody of said board; that said board has ever since, and does now, retain the license fee so paid by him as aforesaid, and has at no time canceled or withdrawn the authority given and granted by said certificate. Wherefore, he says that, having complied with all the requirements of said act, he should be discharged, etc. To this plea the state successfully demurred for insufficiency of facts.

In support of his plea in bar, appellant argues that the diploma held by him from a school of osteopathy at the time the law went into effect entitled him to a license to practice medicine, and having applied to the Board of Medical Examination for a certificate, and exhibited and filed with the board his diploma and paid the legal fees, and done, as he avers, all that he was required by the law to do, and his license being wrongfully withheld, he had a right to practice medicine. In this contention he has fallen into error. He relies upon the proviso to section 4, as amended (Acts 1901, p. 475, c. 211; section 8411, Burns' Ann. St. 1908), which proviso was in effect repealed, or at least modified, by the act of 1905 (Acts 1905, p. 194, c. 115; section 8404, Burns' Ann. St. 1908), which latter act provides: “That any osteopathist now practicing in and a resident of the state of Indiana, and holding a diploma from a reputable college of osteopathy, as determined by the State Board of Medical Registration and Examination, shall be eligible to an examination on proper application to the said board, and should he pass this examination he shall be granted a certificate for a license forthwith to practice osteopathy in the state of Indiana.” In the first place, it is not averred that the institution that granted to him the diploma was “a reputable college of osteopathy, as determined by the board,” or that he had applied for, or had requested of the board, an examination, or that the board had refused him an examination, or that he had successfully passed an examination. The mere delivery of the diploma to the board, and the payment to it of $10 as a fee upon which appellant counts, of themselves amount to nothing. Calling the money paid a license fee does not make it a license fee. The statute requires the payment of $10 to the...