Piper v. State

• Decision Date: 11 June 1930
• Citation: 231 N.W. 162,202 Wis. 58
• Parties: PIPER v. STATE.
• Court: Wisconsin Supreme Court

202 Wis. 58

231 N.W. 162

PIPER

v.STATE.

Supreme Court of Wisconsin.

June 11, 1930.

Error to review judgment of the Municipal Court for Milwaukee County; C. M. Davison, Circuit Judge.

Oscar C. Piper was convicted of practicing medicine without a license, and he brings error.--[By Editorial Staff.]

Affirmed.

Prosecution for practicing medicine without a license commenced February 19, 1930; sentence imposed April 3, 1930.

The information in substance charges that on February 11, 1930, the defendant attempted to practice medicine without a license from the state board of medical examiners. A second count charges an unreversed prior conviction and sentence on February 15, 1917, of a like “second offense.” The defendant pleaded not guilty. A jury returned a verdict guilty as charged in the information. The court imposed a sentence of six months' imprisonment in the Milwaukee house of correction, and a fine of $100 and costs. The information was indorsed “Information for practicing Medicine without a License. (3d Offense) Sections 147.14 and 359.16.”

The defendant is a barber. A state inspector for the board of medical examiners testified that he went to the barber shop the defendant was conducting at 3516 Fond du Lac avenue and was invited by defendant into a rear room having the sign “Office” on its door. The inspector told defendant he understood he was handling venereal diseases and cured some cases and that he wanted treatment for himself. The defendant asked what was the inspector's trouble and whether he had pains in groins and back. The inspector answered defendant's questions. The defendant said he wasn't taking any chances on making a physical examination as he was being watched closely, but thought the inspector had prostate gland trouble; that the remedy he prescribed was a radical departure from that used by doctors in such cases; that if the disease was not handled correctlyit would be likely to develop into cancer of the prostate gland; that his remedy was to rub a liquid preparation of his on the back and allow the blisters that would result to remain on seven days, and to use pork lard and ordinary cotton batting when the pain got too severe; this treatment should be once repeated; it would produce a sort of localized smallpox which would drive the poison germs out of the system and not permit the disease to spread. The defendant said that he was selling the medicine at $5 the bottle and sold a bottle of it, produced in evidence, to the inspector at that price. A policeman of Milwaukee testified that the defendant's barber shop was on his beat.

The state offered in evidence municipal court records A-9027 and A-622 evidencing two prior convictions of Oscar Piper for practicing medicine without a license. The defendant was identified as the accused in both cases. The information in A-9027 charged a prior conviction, apparently that evidenced by A-622. These records are not incorporated in the bill of exceptions. The language used in offering them in evidence is not definite enough to indicate that A-9027 evidences the particular prior conviction charged in the instant case. On offering them the assistant district attorney asked whether “counsel objects to the admission of the two prior convictions” and defendant's counsel answered: “We will concede the record is proper evidence as long as you can show the party in that case was the Oscar Piper, the party on trial.”

Wm. A. Schroeder and Jacob S. Rothstein, both of Milwaukee, for plaintiff in error.

John W. Reynolds, Atty. Gen., Geo. A. Bowman, Dist. Atty., and Oliver L. O'Boyle, Deputy Dist. Atty., both of Milwaukee, for the State.

FOWLER, J.

The plaintiff in effect alleges as error that: (1) The venue was not proved. (2) The proof does not establish guilt of violation of section 359.16 Stats. (3) Section 359.16 is unconstitutional. (4) The proof does not establish guilt of any offense. (5) The deceit of the inspector in inducing defendant's acts renders inadmissible evidence of the transaction with the inspector.

[1][2][3] 1. While direct proof of venue should be made, absence of it does not defeat conviction, where inference of it may properly be drawn from circumstantial evidence. Where no witness testifies directly to the venue, it is sufficiently proved if there is reference in the evidence to the locality known or probably familiar to the jury where the act constituting the offense was committed from which the jury may reasonably have concluded that the place was in the county alleged. Kellar v. State, 174 Wis. 67, 69, 182 N. W. 321; 16 Corp. Jur. p. 769. The defendant's shop, where the transaction involved occurred, was located on Fond du Lac avenue at least probably known to the jurors as a street in Milwaukee. A city policeman testified that it was on his beat. The jury were warranted in concluding from this that the offense was committed in Milwaukee county.

[4] 2, 3. Section 359.16 provides that in cities of the first class as designated by statute when it comes to the knowledge of the prosecutor that the defendant “on three or more occasions has been found guilty and sentenced * * * to the house of correction” it shall be the duty of the prosecutor to charge such three or more convictions and that upon his conviction of the charge preferred and such former convictions, the court shall sentence the defendant to an indeterminate term in the house of correction of one to five years. Here the information charges and proof at most shows only two prior convictions. The statute therefore does not apply, and, not applying, there is no occasion to consider its constitutionality.

[5][6][7][8] 4. Section 147.14 provides that no person shall attempt to practice medicine without a license from the state board of medical examiners. The complaint alleges such an attempt by the defendant. The testimony of the inspector, if true, plainly establishes such an attempt. The jury...