State v. Buswell

• Decision Date: 17 April 1894
• Citation: 40 Neb. 158,58 N.W. 728
• Parties: STATE v. BUSWELL.
• Court: Nebraska Supreme Court

40 Neb. 158

58 N.W. 728

STATE

v.BUSWELL.

Supreme Court of Nebraska.

April 17, 1894.

Syllabus by the Court.

1. The act to establish a state board of health; to regulate the practice of medicine in Nebraska, etc.,--is as much directed against any unauthorized person who shall operate on, profess to heal, or prescribe for, or otherwise treat any physical or mental ailment of another, as against one who practices “medicine, surgery, and obstetrics,” as those terms are usually and generally understood.

2. The object of the statute establishing a state board of health, etc., is to prevent imposition upon the afflicted by ignorant and unqualified pretenders to healing power; and any person not within the exceptions prescribed in said act, and not having complied with its requirements as to a certificate, who shall, under any pretense, operate on, profess to heal, or prescribe for, or otherwise treat any physical or mental ailment of another, thereby renders himself liable to its penalties.

Exceptions to district court, Gage county; Bush, Judge.

Ezra M. Buswell was indicted for practicing medicine, as a Christian Scientist, without a certificate from the state board of health. Verdict of not guilty, and the state excepts. Exceptions sustained.Geo. H. Hastings, Atty. Gen., and R. W. Sabin, for the State.

Rickards & Prout and Alfred Hazlett, for defendant in error.

RYAN, C.

The material parts of the indictment upon which the defendant was tried were in the following language: “That Ezra M. Buswell, late of the county aforesaid, on the first day of September in the year of our Lord one thousand eight hundred and ninety-one, in the county of Gage and state of Nebraska aforesaid, then and there an illiterate man, and unskilled in the art and faculty of medicine and surgery, and devising and intending by divers unlawful means, falsely, unlawfully, craftily, and wickedly, to deceive and defraud the people and citizens of said county of their goods, chattels, and money, to maintain his dishonest course of living, on the first day of September in the year of our Lord one thousand eight hundred and ninety-one, and thence continually until the finding of this indictment, to wit, for the space of eighteen months, at diverse places in said county, falsely and unlawfully did assume upon himself to execute, exercise, and occupy the art, faculty, and science of a physician and surgeon, and did then and there profess to heal and otherwise treat sick persons, of their physical and mental ailments, and did then and there, falsely and fraudulently, as a physician and pretended healer of sick persons, attend on sick persons, and persons with various infirmities, diseases, and wounds, and treat them, and profess to heal them, in the city of Beatrice, and divers other places in said county,--the said Ezra M. Buswell never having been a graduate from any medical college; nor had he a diploma from any medical college, as required by law, to practice medicine in said state, nor had he a certificate from the state board of health of said state, entitling him to practice medicine or surgery, or otherwise treat, or profess to heal, physical or mental ailments; nor had he complied with the law, in any respect, so as to entitle him to practice medicine or surgery, or treat, in any manner, physical or mental ailments; nor had he confined himself to administering gratuitous services in cases of emergency, or to the administering of ordinary household remedies.” The defendant was acquitted, and the case is brought to this court under the provisions of sections 483, 515-517, of the Criminal Code. To a compliance on our part with the provisions of the sections just referred to, it is necessary only to consider the sixth instruction given at the request of the defendant. This instruction was in the following language: “(6) The jury are instructed, as a matter of law, that it is manifest, from the law under which defendant is indicted, that the object of the legislature in the enactment thereof was only to provide for the regulation of the practice of ‘medicine, surgery, and obstetrics,’ as these terms are generally understood; and unless you believe from the evidence, and beyond a reasonable doubt, that the defendant, within the time mentioned in the indictment, practiced ‘medicine, surgery and obstetrics,’ as these terms are usually and generally understood, then you will find the defendant not guilty.” The law to which reference was made in the instruction is found in chapter 35 of the Laws of 1891. The act constituting chapter 35, aforesaid, was entitled “An act to establish a state board of health; to regulate the practice of medicine in the state of Nebraska,” etc. Section 17 thereof was as follows: “Sec. 17. Any person shall be regarded as practicing medicine within the meaning of this act who shall operate on, profess to heal, or prescribe for or otherwise treat any physical or mental ailment of another; but nothing in this act shall be construed to prohibit gratuitous services in case of emergency, and this act shall not apply to commissioned surgeons of the United States army or navy, nor to nurses in their legitimate occupations, nor to the administering of ordinary household remedies.” The other provisions of the act are, for our purpose, sufficiently indicated in the language already quoted from the indictment. The instruction complained of required, as an indispensable prerequisite to a conviction, that the jury should find that the defendant, within the time mentioned in the indictment, had practiced “medicine, surgery, or obstetrics,” as those terms are usually and generally understood. Governed by this instruction, the jury could not do otherwise than acquit, for there was no proof to meet its requirement. Whether or not the instruction was proper, in view of the evidence adduced, is the sole question presented for our determination.

It is conceded that the perfect toleration of religious sentiment, and enjoyment of liberty in all religious matters, is of paramount importance; and, lest the contention of the defendant may be misunderstood or imperfectly stated in our own language, that contained in the brief filed on behalf of the defendant will be freely used. Such evidence as was in that brief, deemed sufficient to illustrate the argument for defendant, was as follows: Richard Walthers testified that his brother's boy came home from Florida in September, 1892; that there were running sores on his legs, caused by rheumatism, and that he could not walk, except by the aid of crutches; that after the defendant had seen him, about two weeks after the boy came back, he laid aside his crutches, and walked by the aid of a cane, and, after using that for awhile, threw it away, and walked as other boys do. James Ellerbeck testified to having been bitten by a rattlesnake, and that he at once sought the defendant, and asked him for help. After talking with the defendant at the church rooms, they went to Rev. Buswell's house; and what took place there is best told in the language of the witness himself: “Q. What did you do then? A. The pain ceased after his treatment, and after driving to his house it seemed to get worse, until about 8 o'clock. He talked to me on the Bible, and different subjects in the Bible, and about 8 o'clock he said he would treat me again. I laid down on a lounge, and he sat down, and put his hands over his face, and was in that position, may be, ten or fifteen minutes; and all at once I felt it come right through me, and it raised me up, and I sat on the lounge, and I told him I had wakened up. And from that time on I had no more pain, only there was one or two minutes, when I first got up, and put my foot on the floor, that the stiffness seemed to be hard, for a few minutes. Now, during all this time, I never lost a meal, nor an hour's sleep, after that one treatment.” L. Bushnell testified that he was afflicted with a disease that baffled the skill of the physicians, who advised him, if he could obtain assistance from Scientists, that he should try; that he then sought aid from them, and a very short time afterwards was able to go about as usual, and sawed wood for the people of the village in order to earn his livelihood; that, about three years prior to the time of giving his testimony, he had fallen down a flight of stairs, and had received serious injuries; that the defendant was sent for, and visited him; and that he recovered without any other aid than that of the prayers of the defendant. The witness Burgess testified of his serious illness from pneumonia, and that the defendant called on him, and explained the Scripture to him, and prayed for him, and that in a short time he recovered. Mrs. Gibbs testified that in the previous January her little boy, four years of age, had an attack of scarlet fever; that the physicians pronounced his case hopeless; that the child was treated by the Scientists, and fully recovered. The defendant, Buswell, having been sworn, testified that he was a Christian Scientist, so far as he understood, and that he lived up to the teachings of Jesus Christ; that he first studied the Christian Science in his home, at Beatrice, and was cured of physical ills through that study. After that he studied with Mary B. G. Eddy in her Metaphysical College, in Boston, of which college he was afterwards a graduate. The term “Christian,” as he understood it, means “Christlike;” the teachings of Jesus understood and followed; science, truth understood. He further testified that the Scripture teaches us that God is truth. “Truth,” the witness said, “is that which is always the same, can never change; the one Supreme Being, the All Powerful; that which created all things that are; He who made all that was made, and made it good, as is said in his Word. The Scripture tells us to know the truth, and it will make us free. We understand ‘to be free’ means to be free in the full...