People v. Hawker

• Decision Date: 16 March 1897
• Citation: 152 N.Y. 234,46 N.E. 607
• Parties: PEOPLE v. HAWKER.
• Court: New York Court of Appeals Court of Appeals

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.

John D. Lindsay and Robert C. Taylor, for the People.

Hugh O. Pentecost, for respondent.

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 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 contention that it was intended to relate only to felonies thereafter committed; but when it is read in connection with the provisions of section 140 it seems clear that such a construction was not intended, for that section expressly prohibits any person from practicing medicine ‘who has ever been convicted of a felony.’ The word ‘ever,’ to our minds, clearly indicates the legislative intention to prohibit the practice of medicineon the part of any person who has been convicted of a felony either before or after the passage of the law.

Is the law in question violative of the provisions of the constitution of the United States, which provides that no state shall pass any bill of attainder or ex post facto law? Article 1, § 10. We can hardly believe the claim to be serious that the provisions of the law constitute a bill of attainder. If such is the case, then every statute which provides for an additional punishment for the commission of a crime after a former conviction must fall within the condemnation of the constitution. Bills of attainder having been abolished in this country upon the adoption of the constitution of the United States, but little is known with reference to their peculiar characteristics. In England a bill of attainder was understood to be ‘the stain or corruption of the blood of the criminal capitally condemned,’ the effect of which was that the party attainted lost all inheritable quality, and could neither receive nor transmit any property or other rights of inheritance. The bills were acts of parliament relating to a certain specified person or persons usually named in the acts, in which they were convicted, sentenced, and punished without a judicial trial, and generally without the presence of the accused or his counsel, or an opportunity to be heard, or to establish his innocence. Ex parte Garland, 4 Wall. 333, 387. It will thus readily be seen that the provisions of the public health law have none of the characteristics of a bill of attainder.

A more serious question is presented with reference to the contention that the law is ex post facto. An ex post facto law, as defined by Justice Chase in the case of ...