State v. O'Brien

• Decision Date: 31 October 1881
• Citation: 74 Mo. 549
• Parties: THE STATE, Appellant, v. O'BRIEN.
• Court: Missouri Supreme Court

74 Mo. 549

THE STATE, Appellant,

v.O'BRIEN.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Perry Circuit Court.--HON. WM. N. NALLE, Judge.

REVERSED.

D. H. McIntyre, Attorney General, for the State, cited 1 Archb. Crim. Prac. and Plead., 86, 118; State v. Cox, 32 Mo. 566; State v. Taylor, 73 Mo. 52; 1 Chitty Crim. Law, 283 b.

J. C. Noell for respondent.

HOUGH, J.

The defendant was indicted for practicing medicine in violation of section 1 of the act of April 28th, 1877, which is as follows: “It shall hereafter be unlawful for any person to practice medicine or surgery in this State who shall not have first received the degree of doctor of medicine from a medical college or university duly established under and by virtue of the laws of the country in which such college or university is situated; and any person who shall violate the provisions of this section shall be guilty of a misdemeanor, and upon conviction he shall be fined in a sum not less than $100 nor more than $500; provided, however, that this section shall not apply to any person who may now be authorized to practice medicine or surgery in this State by virtue of existing laws of the State in relation thereto.” The foregoing proviso refers to section 3 of the act of March 27th, 1874, which required all persons then practicing medicine, or who should commence to practice before the 1st day of September of said year, to register their names in the office of the clerk of the county in which they resided, and thereupon authorized them to practice without having received the degree of doctor of medicine as provided by the 1st section of that act. The indictment before us did not negative the proviso contained in section 1 of the act of 1877, and for that reason it was held by the circuit court to be insufficient.

This ruling was erroneous. Whenever an exception is contained in the section defining an offense, and constitutes a part of the description of the offense sought to be charged, the indictment must negative the exception, otherwise no offense is charged. State v. Meek, 71 Mo. loc. cit. 357; State v. Shiflett, 20 Mo. 415. But where, as in the case at bar, the section which defines the offense contains a proviso exempting a class therein referred to, from the operation of the statute, it is unnecessary to negative the proviso, but the exemption therein contained must be insisted on by way of defense, by the party accused. State v. Cox, 32 Mo. 566; State v. Shiflett, 20 Mo. 417, and...