People v. Phippin

• Decision Date: 27 April 1888
• Citation: 37 N.W. 888,70 Mich. 6
• Court: Michigan Supreme Court
• Parties: PEOPLE v. PHIPPIN.

37 N.W. 888

70 Mich. 6

PEOPLE v. PHIPPIN.

Supreme Court of Michigan

April 27, 1888

Error to circuit court, Kent county; ROBERT M. MONTGOMERY, Judge.

William W. Phippin was charged with holding himself out as a medical practitioner, without possessing requisite qualifications. He was convicted, and brings error.

CAMPBELL and MORSE, JJ., dissenting. Moses Taggart, Atty. Gen., for the People.

LONG, J.

This respondent was arrested on July 28, 1887, for unlawfully advertising and holding himself out to practice medicine between June 27 and July 28, 1887, under act No. 167, Pub Acts 1883, entitled "An act to promote public health." The complaint charges, in substance, that on the 29th day of June, and between that day and the date of making this complaint, [July 28th,] at the city of Grand Rapids, in the county of Kent, one William W. Phippin did then and there advertise and hold himself out to the public as authorized to practice medicine, and did practice medicine, in the city, county and state aforesaid, without having the qualification required by law so to do, to-wit, he (the said William W Phippin) not having practiced medicine continuously for five years in this state, and he (the said William W. Phippin) not being a graduate of any legally authorized medical college in said state, or in any of the United States, or in any other country, against the form of the statute, etc. The portions of the statute bearing upon this action read as follows:

"Section 1. The people of the state of Michigan enact that from and after this act shall take effect it shall not be lawful for any person to practice medicine or surgery, or any branch thereof, (except dentistry,) in this state without having the qualifications required by the provisions of this act, and without having first registered in the office of the county clerk as provided in this act.

"Sec. 2. The necessary qualifications to practice medicine in this state shall be: First. That every person who shall have actually practiced medicine continuously for at least five years in this state, and who is practicing when this act shall take effect, shall be deemed qualified to practice medicine in this state, after having registered in the office of the county clerk as provided by this act. Second. Every graduate of any legally authorized medical college in this state, or in any one of the United States, or in any other country, shall be deemed qualified to practice medicine and surgery in all its departments after having registered as provided by this act: provided, that the provisions of this act shall not be construed so as to prohibit any student or undergraduate from practicing with and under the instruction of any person legally qualified to practice medicine and surgery under and by the provisions of this act: provided, that every person qualified to practice medicine and surgery under the provisions of this act shall within three months after this act shall take effect file with the county clerk of the county wherein he has been engaged in practice, or in which he intends to practice, a statement, sworn to, *** setting forth, first, if he is actually engaged in practice in said county, in length of time he has been engaged in such continuous practice, and, if a graduate of any medical college, the name of the same, and where located," etc.

"Sec. 6. Whoever advertises or holds himself out to the public as authorized to practice medicine and surgery in this state, when in fact he is not so authorized under the provisions of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be liable to a fine of not less than five dollars, nor more than fifty dollars, for each offense."

The respondent was tried and convicted upon such complaint, and the warrant issued thereon, before the police court of Grand Rapids, and appealed to the circuit court for the county of Kent. Before the trial of the cause in the circuit court, a motion was made to dismiss the complaint and warrant, quash the proceedings, and discharge the respondent, as follows: First. That there is no offense charged in said complaint under any law of this state, to-wit: (a) It does not allege that defendant was not practicing with and under the instructions of any person legally qualified to practice medicine and surgery under the provisions of act 167, Laws 1883. (b) It does not allege that he has not obtained his permit to practice from the county clerk, by filing with said clerk his sworn statement which would entitle him to practice medicine and surgery, and authorize him to do so, nor does it allege he was not a dentist. ( c) It is not alleged on whom he practiced medicine, and by what means it is claimed he practiced medicine; and it is without proper averment of time, place, person, or circumstance. Second. The law under which this suit was begun has been repealed, and this defendant should be discharged. Third. The act under which this prosecution is brought and had is contrary to the provisions of section 2, art. 4, Const. U. S.; also to the fourteenth amendment to Const. U.S. Fourth. The object of the act is not expressed in its title, and is therefore void, under section 20, art. 4, Const. Mich. The court overruled the motion, and the cause was brought on for trial before a jury, who found the respondent guilty as charged, and the court thereupon adjudged the respondent to pay a fine of $5, and costs of prosecution, taxed at $42, and in default of immediate payment of said fine and costs to be forthwith imprisoned in the common jail of said county, etc. The defendant brings the case to this court upon writ of error, and assigns as error-" First, the circuit court erred in not granting respondent's motion to dismiss the complaint and warrant herein, and to quash the proceedings, and discharge the respondent; second, the circuit court erred in permitting Exhibits A, B, and C to be read in evidence to the jury; third, the circuit court erred in not instructing the jury that there is no proof that between the 29th day of June and the 28th day of July this man advertised or held himself out to practice medicine."

We think the complaint sufficiently specific. It is charged that the "respondent did then and there advertise and hold himself out to the public as authorized to practice medicine, and did practice medicine," etc. It is alleged that the complaint is not sufficiently specific in that it does not allege that respondent was not a dentist. This was not necessary. The language used expressly negatives that fact, in charging he held himself out to practice medicine. The practice of dentistry is not the practice of medicine, nor included in the idea of the practice of medicine. If the complaint had been for holding himself out to practice surgery, there might have been some force in the objection, as dentistry may be said to be a branch of surgery, though upon this we express no opinion. The other objections to the complaint, that it does not charge "that defendant was not practicing with and under the instructions of any person legally qualified to practice medicine and surgery," and that it does not allege that he has not obtained his permit to practice from the county clerk, by filing with said clerk his sworn statement, which would entitle him to practice medicine and surgery, and authorize him so to do, and that "it is not alleged on whom he practiced, and by what means he practiced, medicine," are not well taken. The rule of pleading a statute which contains exception in the enacting clause is that the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party. Com. v. Hart, 11 Cush. 134. "The reason of the rule is obvious, and is simply this: unless the exception in the enacting clause of a statute, or in the general clause in a contract, is negatived in pleading the clause, no offense or no cause of action appears in the indictment or declaration when compared with the statute or contract." Dakota v. Scott, 6 N.W. 435.

The objection that there was no evidence in the case to go to the jury that respondent advertised or held himself out to practice medicine between June 29th and July 28th has no force. It was shown upon the trial that he was called by Mr. Jones to visit his wife, and did visit her, and claiming to be a magnetic healer; that Mrs. Jones was sick, and her husband got him to cure her if he could, and he treated her as a magnetic healer. It is also shown that in June or July respondent was called to the house of Mr. Wheeler and there treated Mrs. Wheeler and child as a magnetic healer. On June 24, 1884, the respondent signed and swore to a paper that purported to be a medical practitioner's sworn statement, and he had a sign out as "Dr. W. W. Phippin, Magnetic Healer." Mr. Wheeler's child died, and a "certificate of death" was made by the respondent, in which he states: "Cause of death, chief and determining: Canker, sore mouth. Duration of disease: June 3 to July 22, 1887. I certify that I attended the person above named in last illness, who died of the disease above stated on the date above named, [July 22, 1887.]" Proof was also offered tending to show that respondent had not practiced medicine continuously for five years in this state, and that he was not a graduate of any legally authorized medical college in said state, or in any of the United States, or in any other country.

Exhibits A, B, and C were properly received and read in evidence. Exhibit A is the medical practitioner's sworn statement, and reads as follows:

" State of Michigan, County of Kent: I, William Wallace

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