State v. Carson
| Decision Date | 29 November 1910 |
| Citation | 132 S.W. 587,231 Mo. 1 |
| Parties | THE STATE v. CHARLES H. CARSON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. E. E. Porterfield Judge.
Reversed.
Reed Atwood, Yates, Mastin & Harvey, John T. Harding, Joseph S Brooks and Dana, Cowherd & Ingraham for appellant.
(1) A physician is registered under the Laws of 1901, who filed a diploma, and caused his name to be entered on the "Roll of Physicians," in the office of the clerk of the county court, and received a license signed by the county clerk on May 15, 1880, said acts being in conformity with the requirements of the Laws of 1877. By complying with the requirements he became a "registered" physician within the meaning of the law. State v. Morgan, 96 Mo.App. 343; State v. Davis, 194 Mo. 485. (2) Repeals by implication are not favored by the law where they affect rights which have accrued under prior valid laws. There was no clause in the law of 1883 revoking licenses issued to physicians and surgeons under the Law of 1877. State v. Evans, 83 Mo. 319; State v. Andrews, 26 Mo. 171; State ex rel. v. Baker, 32 Mo.App. 98; Hannibal v. Guyatt, 18 Mo. 515; Foster v. Dowe, 29 Me. 442; State ex rel. v. Vernon County, 53 Mo. 128; Bank v. Snelling, 35 Mo. 190; State v. Patrick, 65 Mo.App. 653. (3) The court erred in refusing to declare the law as requested by defendant in its instructions 2a and 3a, to the effect that the defendant should be discharged for the reason that it appeared in evidence that the private citizen who filed the affidavit on which the information was based had no knowledge of the facts proven at the time the affidavit and information were filed. State v. Meadows, 106 Mo.App. 604; R. S. 1899, secs. 2477 and 2478; State v. Fuser, 75 Mo.App. 263; State v. White, 55 Mo.App. 356; State v. Shaw, 26 Mo.App. 383; State v. Webster, 206 Mo. 558.
Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
(1) The first act regulating the practice of medicine and surgery passed in this State, is the Act of 1874, set out in the statement of this case. Under the Act of 1874 no one was to be allowed to practice medicine or surgery in this State, unless he had been graduated from a medical college or university with the degree of doctor of medicine, and he was required to register his diploma in the county of his residence. Section 3 of said act excepted from its requirements men who were engaged in the practice of medicine at the time of the passage of said act, or those who entered into the practice of medicine prior to the first day of September, 1874, and permitted said excepted class to sign the roll of physicians in the county clerk's office the same as those having a diploma. The Act of 1877 repealed the Act of 1874, but section 1 of said act contained the proviso that said act should "not apply to any person who may now be authorized to practice medicine or surgery in this State by virtue of existing laws of this State in relation thereto." The Act of 1877 provided that persons having a diploma might practice medicine by having a certified copy of the same filed with the county clerk, and by signing the roll of physicians the same as was provided by the Act of 1874. Under Sec. 3 of the Act of 1874 (known as the "quack section") any person was authorized to sign the roll of physicians who was engaged in the practice of medicine on the first day of September, 1874. But few changes were made in the Act of 1877, and the proviso, as above quoted in the Act of 1877, was evidently inserted by the Legislature for the protection of those who had no diploma, and who had registered under section 3 of the Act of 1874. Under the Act of 1883 it was required of one who would practice medicine or surgery, that he should be a graduate in medicine, and exhibit his diploma for examination and verification to the State Board of Health, or if he should not be a graduate, he should stand an examination before the State Board of Health touching his learning, qualification and fitness to practice medicine and surgery. For the first time said Act of 1883 required the State Board of Health to issue certificates to those having the requirements of the law; the board was also to have two forms of certificates, one for those who were graduates of medical colleges and the other for those found on examination by the board of health to possess the necessary qualifications. The holders of these certificates were required to have them registered in the county clerk's office of their residence. In section 11 of said Act of 1883 appears this proviso: "The provisions of this article shall not apply to those persons who have been practicing medicine five years in this State." By this proviso the Legislature again provided for all who had registered under section 3 of the Act of 1874 by permitting such persons to practice without a diploma and without taking the examination. The appellant having registered on May 15, 1880, under the Act of 1877, he had not, therefore, been engaged in the practice for five years, and did not come within the class excepted in section 11 of said Act of 1883. If appellant had a diploma, as stated in the certificate of the county clerk, offered in evidence, he was then in a position to have filed the same with the State Board of Health, and to have obtained a certificate from said board authorizing him to practice medicine and surgery in this State. This he could have done any time after taking effect of the Act of 1883, and until it was repealed by the Act of 1901. The latter act required all physicians thereafter to take an examination before receiving a certificate from said board, authorizing such person to practice medicine and surgery. Appellant having failed to comply with the Act of 1883, and not having been engaged in the practice for five years before the passage of the Act of 1883, and, therefore, not coming within the exception mentioned in section 11 of said act, he was "not now a registered physician" within the meaning of the law to practice medicine, as provided in section 1 of the Act of 1901. State ex rel. v. Goodier, 195 Mo. 551; State v. Hathaway, 115 Mo. 36; State v. Smith, 60 Mo.App. 283. The cases of State v. Davis, 194 Mo. 485, and State v. Morgan, 96 Mo.App. 343, cited and relied on by appellant, are not in point, and do not sustain the appellant in his contention. (2) While it is true that repeals by implication are not favored, yet, when the last general act is so inconsistent that it and the former act cannot stand together, the courts do not hesitate to hold that the former act is repealed by implication. Yall v. Gillham, 187 Mo. 393; State v. Taylor, 186 Mo. 608; Evans v. McFarland, 186 Mo. 703; Kreyling v. O'Reilly, 97 Mo.App. 384. (3) The record in this case shows that appellant did not file his motion for a new trial and in arrest of judgment until after judgment. Hence the motions were filed out of time, and there is nothing for review except the record proper. R. S. 1899, sec. 2689; State v. Rosenblatt, 185 Mo. 118; State v. Pritchett, 219 Mo. 696.
The prosecuting attorney of Jackson county began this prosecution on November 19, 1906, by filing the following information in the criminal court of said county.
"Affidavit being filed according to law, now comes Isaac B. Kimbrell, prosecuting attorney for the State of Missouri, in and for the body of the county of Jackson, and informs the court that Charles H. Carson, on the day of May, 1906, at the county of Jackson, State of Missouri, did then and there unlawfully practice medicine and surgery in the said State of Missouri, and did then and there attempt unlawfully to treat the sick and others afflicted with bodily and mental infirmities, without first obtaining and having a license from the State Board of Health and without being then and there a physician registered according to law, against the peace and dignity of the State."
The affidavit on which this information was based was made by George Creel.
The defendant being arrested, filed his demurrer to the information, which was overruled, and he was then duly arraigned. A jury was waived and the cause tried to the court, and as will hereafter be noted, defendant was found guilty and his punishment assessed at a fine of five hundred dollars. For the reason that the defendant insisted in his prayer for instructions and declarations of law that his conviction under the information and evidence would be in violation of the State and Federal Constitutions, and renewed these objections in his motion for new trial, this court has jurisdiction of this appeal.
When the information was filed the names of Dr. Adcock and George Creel were indorsed thereon as witnesses.
On the part of the state the testimony tended to prove that in July, 1906, the defendant treated a little boy six years old, the child of Mrs. W. H. Kemper, for a lame leg. When Mrs. Kemper was offered as a witness defendant objected on the ground that her name was not indorsed on the information, which objection the court overruled. On cross-examination, Mrs. Kemper testified she did not see Mr. Creel until the winter of 1907, long after the information was filed, when he came to her home to find out if Dr. Carson had treated the boy and how.
Dr Adcock's testimony tended to show that the defendant admitted to him he had treated a case of appendicitis. The patient had been brought to him from Kansas in October or November, 1906. To this evidence defendant duly objected and excepted on the ground it was a distinct offense from the one on which the state relied for conviction in this case and on which it...
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