State v. Baker
| Decision Date | 19 May 1948 |
| Docket Number | 577 |
| Parties | STATE v. BAKER. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
The defendant was prosecuted upon an indictment charging that he practiced medicine in Richmond County between April 7, 1944, and April 7, 1946, by administering and prescribing drugs in treating the ailments of others without being licensed and registered so to do contrary to the provisions of G.S. s 90-18 and G.S. s 90-19. He entered a plea of not guilty.
It was judicially admitted by both the State and the accused on the trial in the court below that the defendant held a certificate from the North Carolina State Board of Osteopathic Examination and Registration entitling him to practice osteopathy at the times named in the indictment, but that he had never received a license to practice medicine and surgery from the North Carolina State Board of Medical Examiners and had never registered as a physician or surgeon with the Clerk of the Superior Court of Richmond County. The only testimony at the trial was that of the State. This evidence tended to show that the matters set out below occurred in Richmond County during the period specified in the indictment.
The accused engaged in the practice of the healing art for compensation. By means of a printed professional card, he represented himself to be a 'physician and surgeon'. He examined his patients, diagnosed their ailments, and determined the remedies to be applied.
As a general rule, he confined his practice to treating the parts and tissues of the bodies of his patients by manipulations with his hands without the use of medicines. He administered violet ray treatments to those suffering with skin diseases, and relied upon hypodermic injections of alcohol and 'liver extracts' for the alleviation of certain other ailments. Upon at least two occasions, he gave a patient afflicted with low blood pressure injections of a liquid which he represented to be a 'heart stimulant.' He advised one mother to put her nursing baby upon a brand of canned milk known as Carnation Milk.
On numerous occasions, the accused directed his patients to procure from druggists and to use either internally or externally in the treatment of their ailments various patent or proprietary preparations possessing or reputed to possess curative or remedial properties. He said that he 'couldn't write prescriptions', and did not issue any written prescriptions covering any of these substances. But he gave oral orders therefor to the druggists, and the druggists delivered the preparations to his patients in bottles or other containers bearing statements of his directions with respect to their mode of administration. A few of these patent or proprietary remedies were laxatives or tonics.
The preparations were delivered to the defendant's patients in the identical form in which they had been received by the druggists from the manufacturers, contained no poisonous ingredients in harmful quantities, and could have been bought by any person without any order from a physician. Some of them could even have been obtained at ordinary grocery stores. The accused required some of his patients to buy and use certain patent or proprietary vitamin preparations.
The jury found the defendant guilty 'in manner and form as charged in the bill of indictment', the court sentenced him to pay a fine of $100.00 and the costs, and he appealed to this Court, assigning many errors.
Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Atty. Gen., and Smith, Leach & Anderson, of Raleigh, for the State.
Jones & Jones and F. W. Bynum, all of Rockingham, and Ehringhaus & Ehringhaus, of Raleigh, for defendant-appellant.
The accused insists at the outset that he was entitled to a judgment of nonsuit or to a directed acquittal pursuant to his requests for instruction in the court below upon the specific ground that his certificate as an osteopathic physician gave him a right to use drugs in the treatment of his patients similar to that enjoyed by licensed practitioners of medicine and surgery, and that by reason thereof the evidence of the State was legally insufficient to support his conviction, even if it be taken for granted that he had actually administered and prescribed drugs in the course of his practice. Consequently, this appeal presents this fundamental question: Is an osteopathic physician duly licensed by the North Carolina State Board of Osteopathic Examination and Registration entitled under the law to administer or prescribe drugs in treating the ailments of his patients?
Licenses to practice medicine and surgery are granted by the State Board of Medical Examiners under article 1 of chapter 90 of the General Statutes, and certificates to practice osteopathy are issued by the State Board of Osteopathic Examination and Registration under article 7 of chapter 90 of the General Statutes.
An inspection of these statutes makes it evident that the legislature regarded the practice of medicine and surgery as one thing, and the practice of osteopathy as another. But it considered that both of these schools of healing had merit in that they were seeking the common objective of alleviating or curing the ills that afflict the flesh. So it authorized the practice of both systems. In so doing, however, it recognized that these schools of healing were founded upon radically different ideas, and it undertook to protect the public against incompetency at the hands of either group by insuring that the practitioners of each school should be qualified to pursue the particular system that they professed to practice. With this object in view, the legislature enacted statutes requiring applicants for licenses to practice medicine and surgery to attend medical schools, to take courses calculated to equip them to administer and prescribe drugs and use surgical instruments, and to undergo examination as to proficiency to practice medicine and surgery by a licensing board composed of regularly graduated physicians appointed by the North Carolina Medical Society. G.S. c. 90, art. 1. In like manner, the legislature decreed that applicants for certificates to practice osteopathy should attend colleges of osteopathy, pursue studies designed to qualify them to treat diseases without the use of drugs, and to undergo examination as to competency to practice osteopathy by a licensing board composed of practitioners of osteopathy appointed by the Governor upon the recommendation of the North Carolina Osteopathic Society. G.S. c. 90, art. 7. It is significant that the legislature specifies that applicants for licenses to practice medicine and surgery shall study the subjects of materia medica and therepeutics, but makes no such requirment with respect to applicants for certificates to practice osteopathy. G.S. s 90-10; G.S. s 90-131. It is also significant that a licensed osteopath is designated as an osteopathic physician by the legislature. G.S. s 90-134.
It is reasonable to assume that the legislature comprehended the import of the words it employed to express its intent when it enacted the statutes relating to osteopathy. There is no lack of clarity in the meaning of 'osteopathy' either in language or in law. It is the very antithesis of any science of medicine involving the use of drugs. Georgia Ass'n of Osteopathic Physicians & Surgeons v. Allen, 5 Cir., 112 F.2d 52. Dictionaries and Judicial decisions uniformly declare that osteopathy is a system of treating diseases of the human body without drugs or surgery. State v. McKnight, 131 N.C. 717, 42 S.E. 580, 59 L.R.A. 187; State v. Siler, 169 N.C. 314, 84 S.E. 1015; Funk & Wagnalls' New Standard Dictionary; 41 Am.Jur., Physicians and Surgeons, sec. 2; 46 C.J. 1142; 86 A.L.R. 626-630; Burke v. Kansas State Osteopathic Ass'n. 10 Cir., 111 F.2d 250; Waldo v. Poe, D.C., 14 F.2d 749; In re Rust, 181 Cal. 73, 183 P. 548; Mabry v. State Board of Examiners in Optometry, 190 Ga. 751, 10 S.E.2d 740; State v. Sawyer, 36 Idaho 814, 214 P. 222; State v. Stoddard, 215 Iowa 534, 245 N.W. 273, 86 A.L.R. 616; State ex rel. Wheat v. Moore, 154 Kan. 193, 117 P.2d 598: State v. Johnson, 84 Kan. 411, 114 P. 390, 41 L.R.A.,N.S., 539; State v. Hopkins, 54 Mont. 52, 166 P. 304, Ann.Cas.1918D, 956; State ex rel. Johnson v. Wagner, 139 Neb. 471, 297 N.W. 906; State v. Chase, 76 N.H. 553, 86 A. 144; State v. Bonham, 93 Wash. 489, 161 P. 377, L.R.A.1917D, 996; Aronld v. Schmidt, 155 Wis. 55, 143 N.W. 1055. The osteopath 'heals by means of a system of rubbing and kneading the body, applying hot or cold baths, and prescribing diet and exersise for the treatment, relief, and cure of bodily infirmity or disease, without the use of medicine, drugs, or surgery.' 21 R.C.L., Physicians and Surgeons, sec. 2. See, also, State v. McKnight, supra.
In all probability, the General Assembly of 1907, c. 764, enacted the statutes relating to the practice of osteopathy now embodied in article 7 of chapter 90 of the General Statutes because of the decision in State v. McKnight, supra [131 N.C. 717, 42 S.E. 582], in which this court recognized that osteopathy is a 'mode of treatment which absolutely excludes medicines and surgery from its pathology' and held that by reason thereof the statutes requiring examination and license 'before beginning 'the practice of medicine or surgery'' did not apply to osteopaths. Be this as it may, the legislature has expressly defined osteopathy 'to be the science of healing without the use of drugs, as taught by the various colleges of osteopathy recognized by the North Carolina Osteopathic Society. ' G.S. s 90-129. Other statutes manifest the legislative recognition of osteopathy as a non-drug-giving system of healing....
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