People v. Shaver

• Decision Date: 09 December 1937
• Docket Number: No. 24181.,24181.
• Parties: PEOPLE v. SHAVER.
• Court: Illinois Supreme Court

367 Ill. 339

11 N.E.2d 400

PEOPLE

v.SHAVER.

No. 24181.

Supreme Court of Illinois.

Oct. 15, 1937

Rehearing Denied Dec. 9, 1937.

Error to Appellate Court, First District, on Error to Municipal Court of Chicago; Eugene J. Holland, Judge.

Harry C. Shaver was convicted of practicing medicine without a license. To review a judgment of the Appellate Court affirming conviction of the municipal court of Chicago, the defendant brings error.

Judgment affirmed.Thomas Marshall, of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Blair L. Varnes, all of Chicago, of counsel), for the People.

JONES, Justice.

This cause comes here from the Appellate Court for the First District to which this court transferred it. People v. Shaver, 364 Ill. 326, 4 N.E.2D 471. The Appellate Court affirmed the judgment of the municipal court finding the defendant guilty of violating section 24 of the Medical Practice Act (Smith-Hurd Ill.Stats. c. 91, § 16i). He was sentenced to imprisonment in the county jail of Cook county for one year and to pay a fine of $100.

The information contains three counts, which are set out, in full, in the former opinion of this court. Because of the questions presented, their pertinent portions are repeated here for convenience. The first count, after negativing defendant's possession of an Illinois license to practice the treatment of human ailments, charges that on March 17, 1935, he did ‘diagnosticate or attempt to diagnosticate, operate upon, profess to heal, prescribe for or otherwise treat an ailment or supposed ailment of another, to-wit; did then and there prescribe the taking of certain tablets internally, one after each meal, for an ailment or condition in conjunction with the pregnancy of Mary Bosch.’ The second count charges that he did ‘unlawfully suggest, recommend, operate upon, profess to heal or otherwise treat an ailment or supposed ailment of another with the intention of receiving therefor either directly or indirectly a fee, namely: did unlawfully prescribe for an alleged pregnant condition of a Mary Bosch, the taking internally of certain tablets of unknown composition by said Mary Bosch, one after each meal, with the intention of receiving therefor a fee consisting of a portion of the sum of $15 in cash paid on May 16.’ The third count charges that he did ‘unlawfully attach the title ‘Doctor,’ ‘Physician,’ ‘Surgeon,’ ‘M.D.’ or any other word or abbreviation to his name, indicative that he was engaged in the treatment of human ailments as a business, by unlawfully signing his name ‘Shaver, M.D.’ thereby attaching to his name the title ‘M.D.’ indicative that he was engaged in the treatment of human ailments as a business.'

Shorn of verbiage, and narrowed to the real issues, the grounds urged for reversal are: That the allegations of each count are in the disjunctive, and therefore insufficient to charge an offense, or to apprise defendant of the nature of the accusation against him; that the trial court erred in refusing to allow him to withdraw his plea of not guilty and file a motion to quash; that the penalty imposed is excessive; and that the evidence does not sustain the finding of guilty.

It is fundamental that an indictment must be sufficient to charge a public offense, and the omission of a material and necessary description of the offense vitiates the indictment. The question of whether it states facts sufficient to constitute a public offense may be raised at any stage of the case, and may be availed of by motion in arrest or by writ of error. People v. Minto, 318 Ill. 293, 149 N.E. 241;Klawanski v. People, 218 Ill. 481, 75 N.E. 1028. The same rule applies to an information. People v. Tait, 261 Ill. 197, 103 N.E. 750;People v. Weinstein, 255 Ill. 530, 99 N.E. 589. A defendant charged with an offense which may result in his being deprived of his liberty has the constitutional right to know the nature of the charge against him and to have it definitely and specifically set forth with such certainty that he may know with what he is charged, be enabled to prepare his defense, and to plead the judgment in bar of a subsequent prosecution for the same offense. People v. Sherwin, 353 Ill. 525, 187 N.E. 441;People v. Barnes 314 Ill. 140, 145 N.E. 391.

The language of section 24 of the Medical Practice Act, providing a penalty for the violation of any of its terms, is in the disjunctive. The allegations of the information embrace the acts set out in the statute. In Bishop on Statutory Crimes, § 244, the rule is laid down: ‘If, as is common in legislation, a statute makes it punishable to do a particular thing specified, or another thing, or another, one commits the offense who does any one of them, or any two or more or all of them, and the indictment may charge him with any one or with any larger number at the election of the pleader, employing, if the allegation is of more than one, the conjunction ‘and’ where ‘or’ occurs in the statute.' That rule has been adopted in this state. People v. Langguth, 347 Ill. 500, 180 N.E. 464;People v. Reed, 287 Ill. 606, 122 N.E. 806;Blemer v. People, 76 Ill. 265. The general rule is that charging more than one of such acts in the disjunctive renders the indictment defective for uncertainty. This rule is of long standing. Thompson v. State, 37 Ark. 408;Commonwealth v. Grey, 68 Mass. (2 Gray) 501,61 Am.Dec. 476;State v. Colwell, 3 R.I. 284;Clifford v. State, 29 Wis. 327;State v. Currier, 225 Mo. 642, 125 S.W. 461; State v. Flynn, 76 N.J.Law 473, 72 A. 296;State v. Shadroui, 89 Vt. 520, 96 A. 8. The reason for the rule is plain. If a defendant is charged in the disjunctive only, there is no definite statement of any fact which constitutes a violation of the law, and the accused is not apprised which charge he is required to meet.

In determining whether the information in this case comes under the general rule, the language employed, and its effect, must be considered. It must be noticed that in each of the first two counts the offense charged is laid under a videlicet. The first count, after alleging several acts in the disjunctive, proceeds with the specific charge, ‘to-wit: did then and there prescribe the taking of certain tablets internally.’ The second count, in the same manner, using the word ‘namely,’ charges an unlawful prescribing. The third count, after several disjunctive allegations, makes them specific with the phrase ‘by unlawfully signing his name ‘Shaver, M.D.”

When any fact alleged in pleading is preceded by ‘to-wit,’ ‘that is to say,’ or ‘namely,’ such fact is said to be laid under a videlicet. The precise and legal use of a videlicet in every species of pleading is to enable the pleader to isolate, to distinguish, and to fix with certainty that which before was general, and which, without such explanation, might with equal propriety have been applied to...