Parks v. The State

• Decision Date: 07 October 1902
• Docket Number: 19,670
• Citation: 64 N.E. 862,159 Ind. 211
• Parties: Parks v. The State
• Court: Indiana Supreme Court

64 N.E. 862

159 Ind. 211

Parks v. The State

No. 19,670

Supreme Court of Indiana

October 7, 1902

From Lawrence Circuit Court; W. H. Martin, Judge.

George P. Parks was convicted of practicing medicine without a license, and appeals.

Affirmed.

S. B Peugh, for appellant.

W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley for State.

OPINION

Gillett, J.

Appellant was prosecuted, by affidavit and information, for practicing medicine without a license. There were three counts in the affidavit and information. Appellant moved to quash each count thereof, but his motion was overruled, and he excepted. Upon issue joined, a trial was had that resulted in a finding of guilty as charged in each count. Judgment was rendered in accordance with the finding. A motion for a new trial, in connection with a proper assignment of error, presents the further question as to the sufficiency of the evidence. The first count of the affidavit and information was in the form prescribed by statute. Acts 1901, p. 475, § 8, § 7323c Burns 1901. It is contended, notwithstanding, that the charge is insufficient because of uncertainty.

In Benham v. State, 116 Ind. 112, 18 N.E. 454, which was a prosecution for a like offense, the charge was in the same general form, and it was held sufficient by this court. It was there said, at page 114: "We are of opinion, however, that the indictment in this case is not open to the objection that it does not state the offense charged with sufficient certainty. The offense charged against appellant herein is purely a statutory offense--that is, it was created and defined and its punishment prescribed by the provisions heretofore quoted of the above entitled act of April 11, 1885. In such a case, it has been held by this court, as a general rule, that an indictment or information will be sufficient to withstand a motion to quash, if it charge the offense in the language of the statute, or in terms substantially equivalent thereto. Howard v. State, 87 Ind. 68; State v. Miller, 98 Ind. 70; Ritter v. State, 111 Ind. 324, 12 N.E. 501; Trout v. State, 111 Ind. 499, 12 N.E. 1005. In the case under consideration it is conceded on behalf of appellant that the offense charged is a statutory offense, and that the indictment charges him with such offense substantially in the language of the statute. In Eastman v. State, 109 Ind. 278, 10 N.E. 97, the appellant was prosecuted, as we may infer from the opinion of the court, as is the defendant in the case in hand, for unlawfully practicing medicine without having first procured, from the proper clerk, a license so to do. In the case cited the sufficiency of the charge seems to have been challenged, and, upon this point, the court there said: 'The offense is charged in the language of the statute, and this is sufficient. State v. Miller, 98 Ind. 70, and cases cited; Graeter v. State, 105 Ind. 271, 4 N.E. 461; Antle v. State, 6 Tex. Ct. App. 202.'" Various acts may enter into the offense, but the acts, whether many or otherwise, constitute but one substantive offense, created by § 1 of the act of 1897 (§ 7318 Burns 1901), namely, the offense of practicing medicine, surgery, or obstetrics without a license. As was said by this court in Shilling v. State, 5 Ind. 443: "Whenever the charge consists of a series of acts, they need not be specially described, because they are not the offense itself, but merely go to make up the evidence of the offense." It is proper to consider in addition the effect of the provision of the statute as to what shall be a sufficient charge. We cite as authorities bearing upon this question the following cases: Riggs v. State, 104 Ind. 261, 3 N.E. 886; State v. Learned, 47 Me. 426, 433; State v. Corson, 59 Me. 137; Wolf v. State, 19 Ohio St. 248; Turpin v. State, 19 Ohio St. 540; Cathcart v. Commonwealth, 37 Pa. 108; Goersen v. Commonwealth, 99 Pa. 388; State v. Morgan, 112 Mo. 202, 20 S.W. 456, and cases there cited. As there was no relaxing of the requirement that the ultimate substantive offense should be stated, we think, especially in view of the above authorities, that there has been no denial of the right of appellant to demand the nature and cause of the accusation against him.

It appears from the evidence that at the time in question the appellant practiced magnetic healing, and had done so for eight years prior thereto; that he did not use medicines or surgery; that he held himself out as a magnetic healer, advertised as such, and styled himself "Professor;" that he was not a graduate of any school of medicine, and had no license; that he diagnosed cases entirely by the nerves; that on the 8th day of April, 1901, one Edward Garvey came to him to be treated for a lame ankle; that after examining the ankle appellant diagnosed the case as rheumatism, and proceeded to give treatment, which consisted, at least in so far as there was anything manual about it, in holding the afflicted parts and rubbing them. An effort upon the part of appellant, while testifying as a witness, to describe magnetic healing was prefaced by the statement that "it is pretty hard to describe for people to understand." At this point he was interrupted by the court, and the subject does not seem to have been pursued further. Appellant charged and received $ 1 for the treatment that he gave said Garvey. There can be no question as to appellant's guilt, if the act under which he was convicted is valid.

Assuming, for the time being, the validity of the statute, we do not think that any question is presented as to the sufficiency of the second and third counts of the affidavit and information. The rule of the criminal law is that when there is a good count and a bad count, and a general verdict of guilty is returned on which judgment is rendered, it will be presumed on appeal that the judgment was rendered on the good count. Powers v. State, 87 Ind. 97. It is true that the finding affirmatively appears to have been based on each count, but in a case of this kind, where there is one sufficient count,--assuming the validity of the statute, --and that count is established by evidence of a single, substantive transaction, admitted by the appellant, we think that questions as to the sufficiency of other counts of the affidavit and information are moot questions.

The prosecution in this case is based on the act of March 8, 1897 (Acts 1897, p. 255), and its subsequent amendments. §§ 7318-7323e Burns 1901. Certain sections of the act of 1897 were amended by an act passed in 1899. Acts 1899, p. 247. By an act passed in 1901, § 8 of the original act was amended and certain sections of said amended act of 1897 were in turn amended. Acts 1901, p. 475. The act as it now stands is too long to set out here. It will reasonably suffice to set out that portion of § 8 of the act, as amended in 1901, that precedes the provision as to what a charge of violating the act shall contain. Said first portion of the section referred to is as follows: "To open an office for such purpose or to announce to the public in any way, a readiness to practice medicine in any county of the State, or to prescribe for, or to give surgical assistance to, or to heal, cure or relieve, or to attempt to heal, cure or relieve those suffering from injury or deformity, or disease of mind or body, or to advertise, or to announce to the public in any manner a readiness or ability to heal, cure or relieve those who may be suffering from injury or deformity, or disease of mind or body, shall be to engage in the practice of medicine within the meaning of this act: Provided, that nothing in this act shall be construed to apply to or limit in any manner the manufacture, advertisement or sale of proprietary medicines. It shall also be regarded as practicing medicine within the meaning of this act, if any one shall use in connection with his or her name the words or letters, 'Dr.,' 'Doctor,' 'Professor,' 'M. D.,' or 'Healer,' or any other title, word, letter, or designation intending to imply or designate him or her as a practitioner of medicine or surgery in any of its branches: Provided, that this act shall not be construed to apply to non-itinerant opticians who are at this time engaged in, or who may thereafter engage in the practice of optometry in this State, nor to professional or other nurses."

The act of 1897, as amended in 1899, and as further amended in 1901, must be construed as though the amendments as they now exist had been incorporated in the original statute. Blakemore v. Dolan, 50 Ind. 194; Pomeroy v. Beach, 149 Ind. 511, 49 N.E. 370.

The appellant challenges the validity of the amended statute as applied to him. This challenge is based largely on the claim that the amended statute is in conflict with the fourteenth amendment to the federal Constitution. That amendment is as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The privileges and immunities clause of this amendment has no application to the denial that is complained of here. Slaughter-House Cases, 83 U.S. 36, 16 Wall. 36, 21 L.Ed. 394; Duncan v. Missouri, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485; Cooley's Const. Lim. (5th ed.), 397.

But the last two clauses of the amendment challenge our attention. These are plain restrictions upon the exercise of arbitrary and capricious power over persons and property,...