People v. Joe

• Decision Date: 15 June 1889
• Citation: 21 N.E. 923,129 Ill. 370
• Parties: PEOPLE, to Use of STATE BOARD OF HEALTH, v. BLUE MOUNTAIN JOE.
• Court: Illinois Supreme Court

129 Ill. 370

21 N.E. 923

PEOPLE, to Use of STATE BOARD OF HEALTH,

v.BLUE MOUNTAIN JOE.

Supreme Court of Illinois.

FN1 Reported by Louis Boisot, Jr., of the Chicago bar.

June 15, 1889.

Appeal from county court, Clark county; HENRY GASAWAY, Judge.

Newton Tibbs, for appellant.

SHOPE, J.

This was an action of debt brought in the name of the people of the state of Illinois, for the use of the state board of health against ‘Blue Mountain Joe,’ before a justice of the peace in Clark county. An appeal was taken from the judgment of the justice of the peace to the county court of that county, where a trial was had by jury, and resulted in a verdict and judgment for the defendant. The plaintiff below prosecutes this appeal from that judgment.

A motion was entered in this court to dismiss the appeal in this cause upon the following grounds. (1) From the record it does not appear that a crime, a franchise, a freehold, or the validity of a statute is involved, or that this court has jurisdiction; (2) the appeal in this cause was improperly and improvidently providently taken to the supreme court; (3) this proceeding is in its nature criminal, being punishable by fine, and comes within the spirit of the law forbidding appeals or writs of error by the people, or the twice putting defendant in jeopardy.

The suit is brought under the eleventh section of the act of June 16, 1887, in force July 1, 1887, entitled ‘An act to regulate the practice of medicine in the state of Illinois.’ The act provides for the recovery of the penalty therein imposed in an action of debt before any court of competent jurisdiction. It is a civil proceeding for the recovery of a penalty, and no furtherattention need be given the third ground upon which the motion is predicated.

By the eighty-eighth section of the practice act, (Rev. St. c. 110,) as amended in 1879, appeals from and writs of error to the circuit courts and county courts, in all criminal cases above the grade of misdemeanors, and in cases in which a franchise or freehold, or the validity of a statute or the construction of the constitution, is involved, and in all cases relating to revenue, or in which the state is interested, as a party or otherwise, shall be taken directly to and prosecuted from the supreme court. If follows, therefore, if the validity of the statute under which this suit is brought is involved, the appeal was correctly prosecuted to this court.

Some consideration of the record will be necessary to a determination of this question. The facts are substantially that the defendant, with a band of music and some Indians, either real or pretended, was in Marshall, in Clark county, some time in April, 1888, and was engaged in selling medicine, being then located in the Opera Hall. He left there, and went to Terre Haute, Ind.; was gone about a month, and returned to Marshall. Upon his return he located in a grove near the town, where he put up tents, consisting, as it was shown, of a medicine tent, a business tent, a cooking tent, and some seven or eight single tents, used as sleeping apartments; and also a show tent, fenced with barbed wire, in front of which he erected seats and a stage. That he paraded the streets twice a day with his band of music and Indians, and gave free shows at night, consisting of music, singing, jokes, wire-walking, and other performances. That after he got the crowd interested he would advertise his medicines, tell what they were good for, and what diseases they would cure. Distribution would then be made of the medicine to his aids, and they would carry it through the crowd for sale. They sold it in the audience anywhere, and to anybody who would buy. Plaintiff offered to show that the defendant had men traveling with him to make sales of the medicine, and also to show that the defendant professed at his meetings that by the use of his various medicines he could cure rheumatism, kidney disease, and other diseases; and also that he sold these medicines for the cure of such diseases. To the proof of each of which matters counsel for defendant objected, and the court sustained the objection. It was shown that the defendant circulated advertisements of the medicines he was selling, one of which, in pamphlet form, was produced, and shown to the witnesses, and identified, and is preserved in the record. Counsel for the plaintiff offered to read such pamphlet to the jury, having first shown it to be one of the advertisements of his remedies distributed by the defendant. Upon objection by the defendant, the court held the same incompetent. Indeed, the court refused to permit any proof to be made, upon the ground as stated by the court, as is shown by the record, that the eleventh section of the law was unconstitutional and void. The court instructed the jury to return a verdict for the defendant, which was done.

It was clearly competent, if the section of the statute under consideration is valid, to show that the defendant was an itinerant vendor of drugs, nostrums, ointments, or appliances of any kind, ‘intended for the treatment of disease or injury.’ The question of whether he was such itinerant vendor was a question of fact, to be determined by the jury in view of all the facts and circumstances proved. That the facts offered to be proved tended to establish the guilt of the defendant of the acts prohibited by this section of the statute is unquestioned. It is apparent that the only theory upon which the action of the court can be sustained is that the legislative enactment under consideration was void. The court so expressly held. It is equally clear, therefore, that the validity of this section of the statute is involved. We said in Chaplin v. Commissioners, 18 N. E. Rep. 765, (filed November 15, 1888,) that, ‘where it can be seen that...