People v. Cole

• Decision Date: 03 October 1916
• Citation: 113 N.E. 790,219 N.Y. 98
• Parties: PEOPLE v. COLE.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 98

113 N.E. 790

PEOPLE

v.COLE.

Court of Appeals of New York.

Oct. 3, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Willis Vernon Cole appeals from a judgment of the Appellate Division of the Supreme Court, 163 App. Div. 292,148 N. Y. Supp. 708, affirming a judgment of the New York County Trial Term (Criminal Branch), convicting him of the crime of ‘practicing medicine without lawful authorization and registration.’ Reversed, and new trial ordered.

Samuel J. Elder, of Boston, Mass., and Henry D. Estabrook, of New York City, for appellant.

Edward Swann, Dist. Atty. of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

CHASE, J.

On February 18, 1911, on an application therefor by the New York County Medical Society, a warrant was obtained against the defendant, charging him with practicing medicine as defined by section 160 of the Public Health Law of the state of New York, without being duly licensed therefor. People v. Cole, 25 N. Y. Cr. R. 350. On March 21, 1911, he was indicted by a grand jury of the county of New York. The indictment charges him with the crime of practicing medicine without lawful authorization and registration, and alleges that such unlawful practicing of medicine occurred on the 19th day of January, 1911, and continually thereafter to and including the 28th day of January, 1911. The defendant was tried on such indictment in the New York Supreme Court, Criminal Term, but the jury failed to agree and was discharged. Another trial was had in the same court, and resulted in a verdict of guilty, and a judgment was accordingly entered against the defendant on the 30th day of March, 1912. He appealed from such judgment to the Appellate Division, where it was affirmed by a divided court. People v. Cole, 163 App. Div. 292,148 N. Y. Supp. 708. An appeal was then taken from such judgment of affirmance to this court.

Practicing medicine, when unaccompanied by acts that are in themselves evil, vicious, and criminal, is not a crime at common law. Practicing medicine is not malum in se. It is important in the interest of public health and public welfare that a person holding himself out as a physician or healer of diseases should have the education, training, skill, and knowledge adequate for such purposes. Statutes designed to protect public health and general welfare by regulating the practice of medicine in some part or all of the territory constituting this state have been enacted from time to time since 1760. When a person is charged with practicing medicine without a license it is necessary to examine the acts of the Legislature to ascertain whether the practices complained of are in violation of the statute law.

The Public Health Law (Cons. Laws, ch. 45) of this state provides, and did provide at all the times mentioned in the indictment, that:

‘No person shall practice medicine, unless registered and legally authorized prior to September first, eighteen hundred and ninety-one, or unless licensed by the regents and registered under article eight of chapter six hundred and sixty-one of the laws of eighteen hundred and ninety-three and acts amendatory thereto, or unless licensed by the regents and registered as required by this article. * * *’ Public Health Law, § 161.

‘The practice of medicine is defined as follows: A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.’ Public Health Law, § 160, subd. 7.

The statute also provides:

‘This article shall not be construed to affect * * * the practice of the religious tenets of any church. * * *’ Public Health Law, § 173.

Our Constitution provides:

‘The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind; * * * but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.’ Constitution of the State of New York, art. 1, § 3.

The defendant was never registered or licensed as a practitioner of medicine. He is a member of the Christian Science Church and a recognized practitioner within the rules of that church. For about seven years he maintained an office in the city of New York. At the times mentioned in the indictment, his office was on the ninth floor of a building at Fifth avenue and Madison Square. It consisted of two rooms; one, a reception room containing chairs, tables, a clock, and literature; and an inner office containing a desk, two chairs, and a telephone. On the door of his office were the words: ‘Willis Vernon Cole, Christian Scientist.’

The evidence taken on the trial consisted of the testimony of a woman who for seven years had been employed by and under the direction of the New York County Medical Society as an investigator, and the testimony of the defendant. The investigator testified that at her first interview with the defendant on January 19, 1911, she waited in the reception room of his office with others until an opportunity to see him arrived, and then she went into the inner office. She further testified as follows:

‘I asked him if he was Dr. Cole. And he said he was Mr. Cole, a Christian Science healer. * * * I said * * * that I read about him in the newspapers; that I called to see if he could cure my eyes, I had been troubled with eye trouble. And he said, ‘How long have you been wearing glasses?’ And I said, ‘Ten years.’ He said, ‘You understand I do not give any medicine, I only give Christian Science treatment.’ * * * I said to him, ‘What is Christian Science?’ And he said, ‘I cure by prayer.’ He said that: ‘You must have faith in God; that God don't make us to have any disease; that we must be all love and all kindness and that God would cure the infidel as well as the confirmed believer in his Divine Power.’ And I said what would be the fee? And he said $2 for the first treatment and all subsequent treatments $1. * * * The defendant then said, ‘I will give you a treatment.’ So Mr. Cole had his chair facing mine, and he closed his eyes and raised his hands up to his face and remained in perfect silence for 15 or 20 minutes. * * * He said, ‘That will do for to-day's treatment. * * * You come back on Friday any time.’'

On Friday, the next day, she returned to his office. Her testimony as to what occurred is as follows:

‘I went in and he said to me, ‘Why, you are looking very well.’ And I said, ‘I feel about the same.’ And after that, why, he spoke about God is good, and we must have love and faith in God. And then he says, why, he will give me a treatment. So that Mr. Cole placed his chair facing mine again, closed his eyes and put his hands up to his face and we remained in perfect silence there for about 15 or 20 minutes.'

She further testified that before the treatment she said to him:

“Mr. Cole, I have a pain in my back.' * * * I then said that I had a porous plaster on my back at that time; and I said to him what did he think about the pain I had in my back. He said it was some kind of disease, but he could not tell what kind it was; he said, ‘I can cure it.’ * * * He said ‘You must now take off that porous plaster because Christian Science cannot cure with plasters on.’ * * * He said that I must take off my glasses as well as remove the plaster from my back. * * * That I should have more faith and understanding; that I must have courage; that I should remove the glasses. * * * I said I must keep my glasses, as I cannot go without them. * * * He said if I wanted to be cured by Christian Science I must remove the glasses. * * * I said, ‘How can you cure locomotor ataxia?’ He said, ‘Just by prayer and having faith in God.’ He said, ‘When patients are given up by physicians they always turn to Christian Science for help.”

He told her to come back on Monday, January 23d. She did so. She said to him:

“I removed the plaster that was on my back as you told me to.' And he said, ‘I want you also to remove the glasses.’ I says, ‘I have to keep the glasses on.’ * * * I said, ‘* * * When I eat bread and potato I would distress my stomach very much.’ He said, ‘Leave your stomach alone; you go home and eat anything you want to.’ * * *'

She returned again on January 27th and brought her little girl with her. The little girl wore glasses. She further testified:

‘I said to Mr. Cole that the child has been wearing glasses, and she also has a cold. I said, ‘Can you cure her by Christian Science?’ and he said, ‘Absolutely.’ I said, ‘Well, will you cure her?’ And he replied, ‘Absolutely.’ So I said that the child had a pair of roller skates, and wearing glasses, why, if she should fall she would injure herself. And he said, ‘You take the glasses off and let the child run and romp like other children;’ that mothers should not put such fear in children. * * *'

He gave them treatment similar to the one he had given her before.

The defendant during the interviews stated to the witness that she had as much power to heal disease as he had, and could do so as well if she would study the Bible and rely upon its promises and offer the prayer of understanding and faith. She understood him when he asserted that he could cure disease as saying that he could bring about the cure by means of prayer to Almighty God. He said to her that all diseases are alike to a Christian Scientist.

The defendant testified that, at the first interview with the investigator:

‘She told me that she had come to be treated for trouble with her eyes and stomach trouble. I informed her that Christian Science...