People v. Devinny

• Decision Date: 12 December 1919
• Parties: PEOPLE v. DEVINNY.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 397

125 N.E. 543

PEOPLE

v.DEVINNY.

Court of Appeals of New York.

Dec. 12, 1919.

George M. Devinny was convicted of practicing medicine without a license. From a judgment of the Third Appellate Division (177 N. Y. Supp. 922), affirming a judgment entered upon a verdict convicting the defendant, the latter appeals.

Judgment reversed, and indictment dismissed.

See, also, 105 Misc. Rep. 555,173 N. Y. Supp. 623.

Chase, Cardozo, and Crane, JJ., dissentingAppeal from Supreme Court, Appellate Division, Third Department.

Andrew J. Nellis, of Albany, for appellant.

Harold D. Alexander, of Albany, for the People.

HISCOCK, C. J.

The defendant has been convicted of practicing medicine without a license. The questions which it is necessary for us to consider spring from the form of the indictment which by demurrer and otherwise has been challenged as insufficient.

At all the times in question it was provided by the Public Health Law (Cons. Laws, c. 45) § 161, that ‘no person shall practice medicine, unless registered and legally authorized, * * * or unless licensed by the regents and registered’ as in said section provided. By other sections the violation of this one is made a misdemeanor. Section 160, subd. 7, of the same act provides as follows:

‘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.’

Section 173, being the one referred to in the last section, enacts that the article in which such latter section is found ‘shall not be construed to affect’ a large number of specified persons.

The indictment accused the defendant ‘of the crime of practicing medicine without being registered and legally authorized (as in section 161 required) committed as follows: The said * * * Devinny, on May 27, 1918, and for a considerable time immediately prior thereto, at Albany, in this county, unlawfully practiced medicine, he not being then registered and legally authorized’ as in the statute required and provided. Under this indictment evidence was given tending to show that the defendant held himself out as being able to diagnose, etc., diseases, and that on three separate occasions he offered and undertook to diagnose and treat the complaint of a certain individual.

Two objections, fundamental in nature, are urged to this indictment. In the first place it is contended that the indictment, in addition to charging in the language of section 161 that Devinny unlawfully practiced medicine without being registered, etc., should have specified under the language of section 160 the specific acts performed by him constituting such unlawful practice and secondly, it is argued that the provision making it unlawful to practice medicine is affected and modified by exceptions, and that therefore the indictment should have negatived these exceptions. These objections will be considered in the inverse order from that in which they have been stated.

[1][2] The general rule is that in dealing with a statutory crime exceptions must be negatived by the prosecution and provisos utilized as a matter of defense. Attempts to apply this general rule and distinguish between exceptions and provisos have resulted in many technicalities and in such subtlety. The two classes of provisions-exceptions and provisos-frequently come closely together, and the rule of differentiation ought to be so applied as to comply with the requirements of common sense and reasonable pleading. In the case at bar if it should be held that an indictment must negative all of the cases referred to in the statute as not being unlawful, it would be drawn out to intolerable lengths and even after that had been done, the burden doubtless would rest upon the defendant of proving that he came within the excepted cases. In addition, section 173, which enumerates the cases where compliance with section 160 will not be required, provides, ‘This article (which includes section 160) shall not be construed to affect’ the cases there enumerated. This language, which should be considered with that of section 160, is quite as appropriate for the statement of a proviso as of an exception.

[3] Under these circumstances we think that the provision in question assumes more the nature of a proviso than of an exception, and that the indictment is not defective because it does not negative all of the cases set forth in section 173. Fleming v. People, 27 N. Y. 329;State v. Flanagan, 25 R. I. 369, 55 Atl. 876.

The second proposition urged by the defendant that the indictment, aside from the foregoing alleged defect, does not state with sufficient particularity the facts constituting the alleged crime presents more difficulty.

The rule is applied in many cases that an indictment which charges a statutory crime in the words of the statute is sufficient. People v. Ellis, 162 App. Div. 288,147 N. Y. Supp. 681;State v. Collins, 178 Iowa, 73, 159 N. W. 604;Parks v. State, 159 Ind. 211, 64 N. E. 862,59 L. R. A. 190;Benham v. State, 116 Ind. 112, 18 N. E. 454;State v. Flanagan, 25 R. I. 369, 55 Atl. 876.

It has been held, however, directly or in effect, in several jurisdictions in the cases of indictments or informations similar to the present one that the above rule does not apply, and that it is necessary to set forth the details of the alleged offense. State v. Carey, 4 Wash. 424, 30 Pac. 729;Schaeffer v. State, 113 Wis. 595, 89 N. W. 481;People v. Watson, 196 Mich. 36, 162 N. W. 943;Dee v. State, 68 Miss. 601, 9, South. 356;O'Connor v. State, 46 Neb. 157, 64 N. W. 719;County of Steuben v. Wood, 24 App. Div. 442,48 N. Y. Supp. 471.

Without finding it necessary to determine whether we should go as far as these cases go, we think that it was necessary for the present indictment to set forth one detail of the alleged offense, which in this particular case would very likely involve and lead to setting forth generally the details of the offense.

[4] It is abundantly established that in charging an offense committed upon or in respect of an individual, as diagnosing, treating, or offering to diagnose or treat, a disease, it is necessary to name, or excuse naming by proper allegation, such individual. People v. Corbalis, 178 N. Y. 516, 71 N. E. 106, concurring opinion of Judge Cullen; People v. Stark, 136 N. Y. 538, 32 N. E. 1046;White v. People, 32 N. Y. 465;People v. Taylor, 3 Denio, 99;People v. Gregg, 59 Hun, 107, 13 N. Y. Supp. 114;People v. Burns, 53 Hun, 254, 6 N. Y. Supp. 611; Grattan v. State, 71 Als. 344; Butler v. State, 15 Blackf. (Ind.) 280; Walters v. State, 174 Ind. 545, 92 N. E. 537;State v. Wilson, 30 Conn. 500;Commonwealth v. Sheedy, 159 Mass. 55, 34 N. E. 84. The reason for the rule is clearly and sufficiently stated in the opinion of Judge Cullen in the Corbalis Case. He there said:

‘I am of opinion that the indictment is fatally defective in failing to allege to whom pools were sold, or, if information as to that could not be obtained, that the names of such persons were unknown to the grand jury. This principle was held in People v. Burns, 53 Hun, 274 , and People...