People v. Hawker

CourtNew York Court of Appeals
Writing for the CourtHAIGHT
Citation152 N.Y. 234,46 N.E. 607
Decision Date16 March 1897
PartiesPEOPLE v. HAWKER.

152 N.Y. 234
46 N.E. 607

PEOPLE
v.
HAWKER.

Court of Appeals of New York.

March 16, 1897.


Appeal from supreme court, appellate division, First department.

Benjamin Hawker was convicted of a misdemeanor in the court of general sessions, New York county, and from a judgment of the appellate division (43 N. Y. Supp. 516) reversing the judgment of conviction, the people appeal. Reversed.

Martin, J., dissenting generally.


[152 N.Y. 234]John D. Lindsay and [152 N.Y. 236]Robert C. Taylor, for the People.

152 N.Y. 237]Hugh O. Pentecost, for respondent.
[152 N.Y. 238]HAIGHT, J.

The defendant was indicted in the court of general sessions of the peace for a misdemeanor, charging that on the 6th day of March in the year 1878 the defendant was convicted in the court of sessions of Kings county of the crime of abortion, upon which he was sentenced to be imprisoned in the penitentiary for Kings county for the term of 10 years; that afterwards, and on the 22d day of February, 1896, at the city of New York, he did unlawfully practice medicine by examining, treating, and prescribing for one Dora Hoenig, against the form of the statute in such case made and provided. To this indictment he interposed a demurrer to the effect that the facts stated in the indictment did not constitute a crime, in that the statute alleged to have been violated is prospective in its application, or, if it is not prospective, in its application, it is null and void, as being in violation of article 1, § 10, of the constitution of the United States, and of the fifth amendment to said constitution, and also of article 1, §§ 1, 6, of the constitution of the state of New York. The demurrer was overruled by the court, and the defendant demanded a trial. A jury was then impaneled, and thereupon his counsel conceded all of the facts as stated in the indictment to be true. He then moved the court to advise the jury to acquit upon the grounds set forth in his demurrer, which was refused, and an exception taken. The case was then submitted to the jury upon the charge of the court, and a verdict of guilty was subsequently rendered, upon which the defendant was sentenced to pay a fine. The statute under which the defendant was indicted was chapter 661 of the Laws of 1893, as amended by chapter 398 of the Laws of 1895, and is known as the ‘Public Health Law.’ Section 140 provides that ‘No person shall practice medicine after September 1, 1891, unless previously registered and legally authorized, or unless licensed by the regents and [152 N.Y. 239]registered as required by this article; nor shall any person practice medicine who has ever been convicted of a felony by any court, or whose authority to practice is suspended or revoked by the regents on recommendation of the state board.’ Section 153, among other things, provides ‘that any person * * * who, after conviction of a felony, shall attempt to practice medicine, or shall so practice, * * * shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than $250 or imprisonment for six months for the first offense, and on conviction of any subsequent offense, by a fine of not more than $500 or imprisonment for not less than one year, or by both fine and imprisonment.’ It is contended that this statute should be construed prospectively. Undoubtedly it has reference only to misdemeanors committed after the passage of the act, but as to the felony charged as the former offense we think it has reference to those committed before as well as after the passage of the act. As we have shown, the provisions referred to are part of the public health law of the state, which provides a system for the preservation of the public health and the practice of medicine, and its provisions, so far as possible, should be construed as in harmony with each other. Section 140 of the act relates to the qualifications of persons who shall be permitted to practice medicine, and prohibits all persons not so qualified from engaging in such practice, including those who have ever been convicted of a felony. Section 153 provides for the punishment that shall be inflicted upon those who violate the provisions of the law. If the provisions of section 153 stood alone, unexplained, there might be some basis for the...

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8 practice notes
  • State v. Kavanaugh., No. 3115.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 16 Mayo 1927
    ...Vt. 54, 25 A. 901; Jones v. Commonwealth, 86 Va. 663, 10 S. E. 1006; Lybarger v. State, 2 Wash. 557, 27 P. 450 [1029]; People v. Hawker, 152 N. Y. 234, 240, 46 N. E. 608; Hawker v. New York, 170 U. S. 201, 18 S. Ct. 578, 42 L. Ed. 1007; In re Wright, 3 Wyo. 481, 483, 27 P. 566, 567 [13 L. R......
  • Spurgeon v. Rhodes, No. 20,728.
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Junio 1906
    ...v. State, 159 Ind. 211, 64 N. E. 862, 59 L. R. A. 190;Meffert v. Medical Board, 66 Kan. 710, 714, 715, 72 Pac. 247;People v. Hawker, 152 N. Y. 234, 46 N. E. 607;Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563;Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 6......
  • Spurgeon v. Rhodes, 20,728
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Junio 1906
    ...59 L. R. A. 190, 64 N.E. 862; Meffert v. State Board, etc. (1903), 66 Kan. 710, 714, 715, 72 P. 247; People, ex rel., v. Hawker (1897), 152 N.Y. 234, 46 N.E. 607; Reetz v. Michigan (1903), 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Dent v. West Virginia (1889), 129 U.S. 114, 9 S.Ct. 231, 32 ......
  • Sanders v. Hartge, 1,593
    • United States
    • Indiana Court of Appeals of Indiana
    • 17 Marzo 1897
    ...assurance of the facts he would have to controvert to meet his attacks, and would be taken unaware in the forensic encounter at the bar. [46 N.E. 607] There are other errors assigned in the record which appellant's learned counsel have discussed, but having reached the conclusion that the j......
  • Request a trial to view additional results
8 cases
  • State v. Kavanaugh., No. 3115.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 16 Mayo 1927
    ...Vt. 54, 25 A. 901; Jones v. Commonwealth, 86 Va. 663, 10 S. E. 1006; Lybarger v. State, 2 Wash. 557, 27 P. 450 [1029]; People v. Hawker, 152 N. Y. 234, 240, 46 N. E. 608; Hawker v. New York, 170 U. S. 201, 18 S. Ct. 578, 42 L. Ed. 1007; In re Wright, 3 Wyo. 481, 483, 27 P. 566, 567 [13 L. R......
  • Spurgeon v. Rhodes, No. 20,728.
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Junio 1906
    ...v. State, 159 Ind. 211, 64 N. E. 862, 59 L. R. A. 190;Meffert v. Medical Board, 66 Kan. 710, 714, 715, 72 Pac. 247;People v. Hawker, 152 N. Y. 234, 46 N. E. 607;Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563;Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 6......
  • Spurgeon v. Rhodes, 20,728
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Junio 1906
    ...59 L. R. A. 190, 64 N.E. 862; Meffert v. State Board, etc. (1903), 66 Kan. 710, 714, 715, 72 P. 247; People, ex rel., v. Hawker (1897), 152 N.Y. 234, 46 N.E. 607; Reetz v. Michigan (1903), 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Dent v. West Virginia (1889), 129 U.S. 114, 9 S.Ct. 231, 32 ......
  • Sanders v. Hartge, 1,593
    • United States
    • Indiana Court of Appeals of Indiana
    • 17 Marzo 1897
    ...assurance of the facts he would have to controvert to meet his attacks, and would be taken unaware in the forensic encounter at the bar. [46 N.E. 607] There are other errors assigned in the record which appellant's learned counsel have discussed, but having reached the conclusion that the j......
  • Request a trial to view additional results

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