Smith v. People

• Decision Date: 03 July 1911
• Citation: 51 Colo. 270,117 P. 612
• Parties: SMITH v. PEOPLE.
• Court: Colorado Supreme Court

117 P. 612

51 Colo. 270

SMITH v. PEOPLE.

Supreme Court of Colorado

July 3, 1911

Error to District Court, City and County of Denver; Hubert L Shattuck, Judge.

Edward C. Smith was convicted of practicing medicine without a license, and brings error. Affirmed.

Edward C. Smith was tried, convicted, and sentenced to pay a fine in the district court of the city and county of Denver on an information charging: 'Practicing medicine without a license.' It contains three counts: The first, that he unlawfully practiced medicine by holding himself out to the public as being engaged in the diagnosis and treatment of diseases and injuries of human beings, without a license; the second, that he unlawfully practiced medicine by maintaining an office for the reception, examination, and treatment of persons suffering from disease and injury of mind and body without a license; the third, that he unlawfully practiced medicine by attaching to his name the title 'Healer,' which indicated that he was engaged in the treatment and diagnosis of diseases and injuries of human beings, without a license.

W. T. Rogers, for plaintiff in error.

Benjamin Griffith, Atty. Gen. (Harry E. Kelly and Charles H. Haines of counsel), for the People.

GARRIGUES J. (after stating the facts as above).

1. Chapter 127, Rev. Stats. 1908, regulating the practice of medicine, is for the protection of the public health. It creates a state board of medical examiners, requires all persons desirous of practicing medicine within the state to obtain a license from the board, makes it a misdemeanor to practice medicine in the state without a license, and defines the practice of medicine. Defendant had no license.

Section 6069 defines the 'practice of medicine' to be, holding one's self out to the public as being engaged in the diagnosis and treatment of diseases or injuries of human beings, or the suggestion, recommendation, or prescribing any form of treatment for the intended palliation, relief, or cure of any physical or mental ailment of any person, with the intention of receiving therefor, directly or indirectly, any fee, gift, or compensation whatsoever; or the maintenance of any office for the reception, examination, and treatment of any persons suffering from disease or injury of body or mind; or attaching any word or abbreviation to one's name indicative that he is engaged in the treatment or diagnosis of diseases or injuries of human beings. It further provides, if any person shall hold himself out to the public as being engaged in the diagnosis and treatment of diseases or injuries of human beings, or shall suggest, recommend, or prescribe any form of treatment for the palliation, relief, or cure of any physical or mental ailment of any person with the intention of receiving therefor, directly or indirectly, any fee, gift, or compensation whatsoever, or shall maintain an office for the reception, examination, and treatment of diseased or injured human beings, or shall attach any word or abbreviation to his name indicative that he is engaged in the treatment of diseased or injured human beings, and shall not theretofore have received or shall not then possess a license to practice medicine under the laws of this state, he shall be deemed to be practicing medicine in violation of the statute. But nothing in the act shall be construed to prohibit the practice of the religious tenets or the general belief of any church whatsoever, not prescribing medicine. The information charges the violation of three provisions of the section: First, holding himself out to the public as being engaged in the diagnosis and treatment of diseases; second, maintaining an office for the reception, examination and treatment, for pay, of persons suffering from disease; third, attaching to his name the title, 'Healer,' indicating that he is engaged in the business of treating diseases.

If the Legislature had power to create the state board of medical examiners, and define the practice of medicine, and the acts of the defendant come within the statutory definition and are not excluded by the exemption, and the evidence shows he committed any one of the acts charged, the conviction should be sustained.

2. The Legislature under the police power of the state could create the state board of medical examiners and fix its powers and duties. The police power of the state relates to the preservation and promotion of the health, safety, and morals of the people. The law is settled that the Legislature may control the practice of medicine. Such enactments emanate from that branch of the police power of the state having to do with the protection of the public health. Harding v. People, 10 Colo. 387, 15 P. 727; Reetz v. Mich., 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Dent v. W. Va., 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Hawker v. N.Y., 170 U.S. 192, 18 S.Ct. 573, 42 L.Ed. 1002; State v. Marble, 72 Ohio St. 21, 73 N.E. 1063, 70 L.R.A. 835, 106 Am.St.Rep. 570; State v. Wilhite, 132 Iowa 226, 109 N.W. 730; State v. Davis, 194 Mo. 485, 92 S.W. 484, 4 L.R.A. (N. S.) 1023; Ex parte Whitley, 144 Cal. 167, 77 P. 879; Parks v. State, 159 Ind. 226, 64 N.E. 862, 59 L.R.A. 190; State v. Heath, 125 Iowa 589, 101 N.W. 429; Little v. State, 60 Neb. 749, 84 N.W. 248, 51 L.R.A. 717; State v. Buswell, 40 Neb. 158, 58 N.W. 728, 24 L.R.A. 68; Bragg v. State, 134 Ala. 166, 32 So. 767, 58 L.R.A. 925; People v. Gordon, 194 Ill. 560, 62 N.E. 858, 88 Am.St.Rep. 165; Jones v. People, 84 Ill.App. 453; State v. Gravett, 65 Ohio St. 289, 62 N.E. 325, 55 L.R.A. 791, 87 Am.St.Rep. 605; People v. Mulford, 140 A.D. 716, 125 N.Y.S. 680; State v. Welch, 129 N.C. 579, 40 S.E. 120; Bibber v. Simpson, 59 Me. 181; Hewitt v. Charier, 16 Pick. (Mass.) 353; Davidson v. Bohlman, 37 Mo.App. 576; Eastman v. People, 71 Ill.App. 236; People v. Allcutt, 189 N.Y. 517, 81 N.E. 1171; O'Neil v. State, 115 Tenn. 427, 90 S.W. 627, 3 L.R.A. (N. S.) 762; State v. Yegge, 19 S.D. 234, 103 N.W. 17, 69 L.R.A. 504; People v. Arendt, 60 Ill.App. 89; People v. Phippin, 70 Mich. 6, 37 N.W. 888; Com. v. St. Pierre, 175 Mass. 48, 55 N.E. 482; Com. v. Jewelle, 199 Mass. 558, 85 N.E. 858; Com. v. Porn, 196 Mass. 326, 82 N.E. 31, 17 L.R.A. (N. S.) 94; State v. Bresee, 137 Iowa 673, 114 N.W. 45, 24 L.R.A. (N. S.) 103; State v. Heffernan, 28 R.I. 20, 65 A. 284; State v. Pollman, 51 Wash. 110, 98 P. 88.

3. The state has the right to determine and define what constitutes the practice of medicine. State v. Edmunds, 127 Iowa 333, 101 N.W. 431; State v. Yegge, 19 S.D. 234, 103 N.W. 17, 69 L.R.A. 504; Little v. State, 60 Neb. 753, 84 N.W. 248, 51 L.R.A. 717; 30 Cyc. 1561.

4. The people's evidence shows that defendant kept a place of business for healing the sick at 1439 California street, city and county of Denver; that there were signs in the windows reading: 'Professor Smith, Healer.' 'Office hours 9 to 12, 2 to 6'; a sign on the door reading 'Professor Smith, Healer.' 'Walk in.' His office comprised two nicely furnished rooms with carpets, chairs, tables, pictures, etc. He claimed his treatment was a natural one--a gift from the Almighty; claimed to restore people to health; said he could cure any disease a medical man could, and many they could not; could cure diarrhoea, and stomach, spinal, nervous, and throat troubles, and pneumonia; mentioned several cases of pneumonia he had recently cured that doctors had given up; said he diagnosed his cases and treated them without medicine. Defendant testified that he belonged to the church of 'The Divine Scientific Healing Mission,' a corporation; that he was a preacher of the gospel and a healer of the sick; held services Sunday afternoons at Howe Hall, where he preached and cured the sick; said his church had branches everywhere; he occupied a couple of living rooms, not an office, where he lived and treated the sick and afflicted without the use of drugs or a knife; some he charged, some he did not; never turned any one away; the signs had been there for over two years and spoke for themselves; did not practice medicine or diagnose diseases; people came to his rooms, told him what was the matter with them, and he treated them; could not tell whether patients had gout, smallpox, or rheumatism, but could and did treat and cure them. 'Healer' means curing the sick. The certificate of incorporation of 'The Divine Scientific Healing Mission,' showing its objects to be, 'preaching, teaching and practicing the gift of healing, guided and directed by divine power, by laying on...