State v. Bresee

• Decision Date: 16 December 1907
• Citation: 137 Iowa 673,114 N.W. 45
• Parties: STATE v. BRESEE.
• Court: Iowa Supreme Court

137 Iowa 673

114 N.W. 45

STATE

v.BRESEE.

Supreme Court of Iowa.

Dec. 16, 1907.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

The defendant was indicted upon a charge of prescribing and furnishing medicine for the sick without having first obtained a license or certificate to practice such profession. The jury returned a verdict of guilty, and, from a judgment rendered thereon an appeal has been taken to this court. Affirmed.E. E. Aylesworth and Reed & Robertson, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.

WEAVER, C. J.

The statute with a violation of which the appellant is charged provides that any person who shall practice medicine in the state without having first obtained a certificate issued by the board of medical examiners authorizing him to engage in such practice shall be guilty of an indictable misdemeanor. Code, § 2580. The preceding section of the Code lays down the rule that any person shall be deemed to be practicing medicine who publicly professes to be a physician and assumes the duties of that profession, or shall make a practice of prescribing, or prescribing and furnishing, medicine for the sick, or shall publicly profess to cure and heal. The indictment against the appellant charges, not only in general statutory terms that she practiced medicine without a necessary certificate, but that she unlawfully professed to be a physician and assumed the duties of a physician; that she prescribed and furnished medicine for the sick, and publicly professed to cure and heal, for a valuable consideration. It was conceded on the trial that appellant had never had a certificate from the board of medical examiners for the practice of medicine. It was shown and admitted that she maintained an office or place in the city of Council Bluffs, Iowa, where she kept and sold to others a preparation known as “Schuessler's Tissue Food,” the use of which was supposed or claimed to be a benefit to the sick, but whether it was sold or used as a medicine or remedy for diseases, or as an article of diet, is a matter upon which the testimony is in some conflict. At the close of the testimony, the court instructed the jury that there was no evidence that appellant did publicly profess to be a physician, or that she assumed the duties of a physician, or that she publicly professed to cure or heal; and that the only question remaining for their consideration was whether during the time covered by the indictment appellant made a practice of prescribing, or prescribing and furnishing, medicine for the sick. The court also instructed the jury that appellant had the right to keep and sell Schuessler's Tissue Food and other proprietary medicines, and, if a customer indicated to her the nature of his complaint, she could rightfully give her opinion what remedy she had therefor, and state her judgment as to which was best, and give gratuitous advice as to their use, but that she would have no right to diagnose a case and determine for the purchaser the character of the remedy he should use.

1. It is argued that to prescribe and furnish medicines is part of the duties of a physician, and, as the court withdrew from the jury the allegation of the indictment that appellant wrongfully assumed such duties, the charge that she unlawfully prescribed and furnished medicines necessarily falls with it. We think the reasoning is unsound. The statute, as we have seen, specifically and separately enumerates each of these acts: (a) Publicly professing to be a physician and assuming the duties of the profession; (b) prescribing medicines for the sick; (c) prescribing and furnishing medicine for the sick, and provides that any person making a practice of either shall be held to be practicing medicine within the meaning of the law. It is quite clear from the statute that the Legislature did not understand that these phrases are merely different expressions of the same idea. Both expressions appear to have been used in order to bring within the scope of the act both the person who professes to be a physician and assumes the duties of that profession and the person who, while not claiming to be a physician, and not assuming the duties of the profession generally, yet undertakes to prescribe and furnish remedies for the sick and afflicted. There was no error, therefore, of which the defendant can complain in submitting the case to the jury upon the theory that the practice of prescribing, or prescribing and furnishing, medicines for the sick is not necessarily included in the charge of publicly professing to be a physician and assuming the duties pertaining to such profession.

2. Again, the point is made that under the court's instruction as to what acts will amount to prescribing and furnishing medicines, and as to plaintiff's right to sell tissue food, there is no evidence upon which a verdict can be upheld. Upon a careful reading of the record, we find no such lack of testimony in support of the indictment as calls for our interference with the finding of the jury. If the witnesses were to be believed, appellant assured the sick applying to her of her ability to cure them, and professed to be able by merely looking at them to determine the nature of their diseases. Such was her confidence in her skill that she boasted that she had never lost a patient, and declared she would not take any patient whom she could not cure. To those desiring her aid she dealt out what she claimed to be “bio-chemical remedies,” or tissue food. On her door she placed a card or sign advertising her business as a “bio-chemist,” whatever that may mean. According to her statement, the remedies or tissue food dealt out by her were prepared by a distinguished German scientist, Prof. Schuessler, who is alleged to have discovered that the human system is made up of 14 different elements or properties, and that with a sufficient tissue food or remedy for the building up of these elements or component parts all diseases would become curable. Twelve of these ultimate elements and their proper tissue food had been discovered by Prof. Schuessler, and, when the other two had been found, “you simply need never die.” These remedies she had in tablet form, and her manner of dealing them out is thus described by one of the witnesses, who had applied to her for this valuable secret of earthly immortality: “She said we should come to her because, while the tablets did the work, they should be administered in just such a form. She would take one bottle then another, and, when people were sitting around the table, she would not give them all from the same bottle. She would kind of give them in a certain way. They were tablets. She called them ‘tissue food,’ I believe. I don't know as I ever heard her call them that, but I suppose she was referring to the remedies--the tissue food and...