Newman v. State
| Decision Date | 12 January 1910 |
| Parties | NEWMAN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Kendall County Court; H. Theis, Judge.
J. M. Newman was convicted of practicing medicine without a license, and appeals. Affirmed.
W. F. Hays, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.
Appellant was charged in the county court of Kendall county with unlawfully engaging in the practice of medicine without having first registered and filed for record the certificate required by law. A jury was waived, and the case submitted to the court, and as result of the trial appellant was fined the sum of $50, and condemned to suffer confinement in the county jail for one hour.
1. There are two questions raised in the appeal. One was that the complaint and information are insufficient, in that they do not negative the exceptions set forth in section 10 of the act in question. This was not necessary. It is only necessary to negative exceptions where they are contained in the enacting clause, which defines the offense. It is not required to anticipate defenses arising under a general act, and negative them.
2. The other question relates to the sufficiency of the evidence to sustain the conviction, and involves a construction of Acts 30th Leg. pp. 224 to 228, inclusive, c. 123. The evidence shows that some time in 1908 appellant inserted in the local paper at Boerne the following advertisement:
He is the doctor that cures Consumption, Appendicitis, as well as all other diseases. Now is your time to be healed. Come and see him while he is here.
Soon thereafter he undertook to treat a number of persons for sundry ailments, including warts, fever, kidney diseases, and stammering. Testifying in his own behalf, appellant stated he was a doctor and a great one; that he could cure the diseases that the M. D.'s could cure, and the diseases that they could not cure; that he had treated and cured various patients of various ailments, and received pay for his services in so doing; that he never used or prescribed medicine in treating his patients; that he only used the massage treatment; that he only rubbed patients for their ailments, and at no time pretended to be a physician or surgeon; that he did not practice medicine, but was opposed to the use of any medicine to effect cures. It was shown by the clerk that he had filed no license or authority to practice medicine.
In the recent case of Ex parte Collins, 121 S. W. 501, we had occasion to consider the act in question. We there held that the word "medicine," as used in the Constitution, embraced the art of healing, by whatever scientific or supposedly scientific method, the art of preventing, curing, or alleviating diseases, and remedying as far as possible results of violence and accident, and that it was broad enough to include any method that was supposed to possess curative power, and authorized the passage of the act in question requiring physicians and surgeons, including osteopaths, to obtain a license before engaging in the practice of their profession. Section 13 of the act in question provides that "any person shall be regarded as practicing medicine within the meaning of this act (1) who shall publicly profess to be a physician or surgeon and shall treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof; (2) or who shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method or to effect cures thereof and charge therefor, directly or indirectly, money or other compensation." Section 10 of the act provides that nothing in it shall be construed so as to discriminate against any particular school or system of medical practice, and that the act shall not apply to dentists legally qualified and registered under the laws of this state, who confine their practice strictly to dentistry; nor to nurses, who practice only nursing; nor to masseurs, in their particular sphere of labor, who publicly represent themselves as such. A fair analysis of section 13 classifies the practitioner who shall be subject and amenable to the law. First, it includes any one who shall publicly profess to be a physician, and claim to effect cures by any system or method; and, second, those who shall treat or offer to treat any disease by any system or method, or to effect cures thereof, and charge therefor. Evidently the words "system or method" were intended to be wide enough in their scope to reach any and every school of medicine, whether based on the administration of pills, potions, or pellets, or the modern—as many persons believe, excellent—system of osteopathy or massage. The history of legislation upon this subject in this state shows that heretofore the Legislature, in dealing with the practice of medicine, had attempted to classify the different branches, and provide for boards for the different schools. Evidently the ineffectiveness of these laws was brought to public attention, because it is certain that the Thirtieth Legislature, with a view of closing every avenue of escape on technical grounds, and for the protection of the public health, as well as individual citizens, against the quack faker and charlatan, undertook to provide that any person shall be regarded as a practitioner of medicine who professed for pay to cure any kind of disorder or injury by any system or by any method.
The first statement in the advertisement put out by appellant characterizes him as a masseur doctor. He advertised himself to be the doctor, and to cure consumption, appendicitis, as well as all other diseases, and warns the public that "now is your time to be healed." Pursuant to his invitation, many people did call to see him, to be healed of their troubles. Can it be said that this man was not holding himself out as a physician, as one who treated and cured diseases? Can it be said that he did not, in the sense that the Legislature understood this term and method or system of treatment, know he is not exempt on the mere ground that he does not use drugs and medicines or surgical instruments? In the case of People v. Alcutt, 189 N. Y. 517, 81 N. E. 1171, in treating a somewhat similar statute, it is said ...
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