State v. Collins

• Decision Date: 18 October 1916
• Docket Number: No. 31370.,31370.
• Citation: 159 N.W. 604,178 Iowa 73
• Parties: STATE v. COLLINS.
• Court: Iowa Supreme Court

178 Iowa 73

159 N.W. 604

STATE

v.COLLINS.

No. 31370.

Supreme Court of Iowa.

Oct. 18, 1916.

Appeal from District Court, Davis County; D. M. Anderson, Judge.

Conviction for the misdemeanor of practicing osteopathy without first having obtained and filed with the county recorder a certificate of the state board of medical examiners, authorizing defendant to practice. Affirmed.Henry C. Taylor and Buell McCash, both of Bloomfield, for appellant.

Thomas A. Goodson, Co. Atty., of Bloomfield, and George Cosson, Atty. Gen., for the State.

SALINGER, J.

I. The indictment charges that:

The defendant “did practice osteopathy in Davis county, state of Iowa, without first having obtained a certificate to so practice from the state board of medical examiners of the state of Iowa, permitting him to practice osteopathy in said county and state, and did, as aforesaid, * * * practice osteopathy in said county and state without filing a certificate from the state board of medical examiners of the state of Iowa, permitting him to practice osteopathy, for record with the county recorder of Davis county, Iowa; the said defendant not being embraced in any of the exceptions contained in the law, and not permitted to practice osteopathy without first obtaining a certificate from the state board of medical examiners and filing the same for record with the county recorder of Davis county, Iowa, contrary to and in violation of law.”

[1] The appellant contends it was error to overrule a demurrer to this indictment, which demurrer asserts the indictment charges a crime not defined or individuated by statute, and charges same by way of mere legal conclusion. He asserts in motion in arrest in judgment the indictment does not charge the crime of practicing osteopathy “as defined by the statute.” He presents in his brief points that an indictment is demurrable where it charges the crime in the words of a statute which is itself a mere legal conclusion and which neither defines nor individuates the crime.

We agree with appellant, and adhere to cases like State v. Railway, 63 Iowa, 508, 19 N. W. 299, and State v. Stroud, 99 Iowa, 16, 68 N. W. 450. The first is that where the acts charged may, under certain circumstances, be lawful and these circumstances are not negatived, the defect is not cured by an allegation that the acts charged were willfully and unlawfully done. The last holds that where it is made an offense to willfully disturb a congregation a naked allegation that defendant disturbed one by loud talking and laughing is not aided by adding that it was done contrary to the statute. We have no criticism to make upon State v. Butcher, 79 Iowa, 110, 44 N. W. 239, approved in State v. Bauguess, 106 Iowa, 108, 76 N. W. 508, that it is not sufficient to state in an information merely that defendant “did commit the crime of unlawfully and willfully disturbing a school taught by.” We adhere to cases like State v. Parsons, 54 Iowa, 405, 6 N. W. 579, and State v. McKinney, 130 Iowa, 375 to 377, 106 N. W. 931, which follow State v. Brandt, 41 Iowa, 612, and hold, in effect, that an indictment which merely charges the unlawful conversion of public money and fails to allege some one of the essentials of the crime of embezzling moneys is fatally defective. We agree that an indictment for robbery which does not allege who owned the property taken is insufficient (State v. Wasson, 126 Iowa, 322, 101 N. W. 1125), and that an indictment for obtaining by false pretenses must state who owned the property alleged to have been thus obtained (State v. Clark, 141 Iowa, 299, 300, 119 N. W. 719), and with State v. Jamison, 110 Iowa, 341, 81 N. W. 594, that where it is the offense to use false weights, an indictment which charges the unlawful and fraudulent keeping of such weights is insufficient, though it be further alleged that such keeping was contrary to and in violation of law. The statute considered in State v. Potter, 28 Iowa, 554, declares that:

“If any two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to * * * do any illegal act injurious * * * to the administration of public justice”

--they are guilty of conspiracy. We have no fault to find with the decision in the Potter Case that an allegation that defendants conspired and confederated together with fraudulent intent to defeat the enforcement of a prohibitory liquor law with money and other unlawful means to prevent the grand jury from finding and presenting bills of indictment for violation of said law, contrary to the statute, is insufficient because it fails to state in what manner money was intended to be used, and to specify more particularly “the other unlawful means.”

We are content with the holding of State v. Clark, 80 Iowa, 517, 45 N. W. 910, wherein it is held by a divided court that an indictment which charges defendant did “make an assault upon one H., with intent to strike and bruise, and did inflict upon the person of said H. a great bodily injury,” is insufficient to charge an assault with intent to commit great bodily injury, since it does not, in words, charge more than an intent to strike and bruise, which intent may exist in the case of a simple assault or assault and battery, and the great bodily injury alleged to have been committed may have been in excess of the attempt. And so of State v. Murray, 41 Iowa, 580, which holds an information insufficient that “defendants are accused of the crime of assault for that the defendants [time and place stated] did willfully and maliciously assault one Bridget McCoy, contrary to the statute in such cases made and provided and against the peace and dignity of the people of said state,” it being held there is a failure to state the acts which make up the offense charged, and that the information is no more than accusing of the commission of a crime by its technical name merely.

Though approving all the foregoing, we are unable to see their relevancy in the instant case.

2. State v. Dankwardt, 107 Iowa, 705, 77 N. W. 495, sustains an indictment for bribery which substantially follows the statute, and is not more specific nor less a conclusion than the indictment in this case; so of State v. Beebe, 115 Iowa, 130, 88 N. W. 358, an indictment for keeping a house of ill fame; so of State v. Johnson, 114 Iowa, 430, 87 N. W. 279, an indictment for assault with intent to commit rape, and State v. Bauguess, 106 Iowa, 108, 76 N. W. 508, an indictment for lewdness; and so of State v. Bair, 92 Iowa, at 29, 30, 60 N. W. 486, an indictment for violating the statute requiring a license of itinerant vendors of drugs. We think, too, that indictments, charging the violation of the statute under which defendant is being proceeded against, and which were as vulnerable as the indictment at bar have been sustained. See State v. Kendig, 133 Iowa, 166, 110 N. W. 463;State v. Wilhite, 132 Iowa, 226, 109 N. W. 730, 11 Ann. Cas. 180.

As we view it, Wilhite's Case holds that the fullness for which appellant contends would constitute setting out with more particularity than is essential. We think, too, that State v. Edmunds, 127 Iowa, 333, 101 N. W. 431, and State v. Corwin, 151 Iowa, 420, 421, 131 N. W. 659, cited by appellant, sustain the indictment at bar.

In State v. McAninch, 172 Iowa, 96, 154 N. W. 399, we considered an indictment under section 2579, Code, which defines practicing medicine, surgery, or obstetrics, and being a physician, surgeon, or obstetrician, and assuming the duties, or who shall make a practice of prescribing, or of prescribing and furnishing, medicine for the sick, or who shall publicly profess to cure or heal, and section 2580 that it shall be a misdemeanor for any person to “practice medicine, surgery or obstetrics in the state without having first obtained and filed for record” a prescribed certificate. We sustained the indictment, which charged that defendant, between stated dates and in a stated county--

“did willfully and unlawfully assume the duties of a physician and make a practice of treating persons afflicted with disease, and did then and there willfully and unlawfully, publicly profess to treat, cure, and heal persons afflicted with disease by a system of treatment called ‘chiropractic,’ without first having obtained from the state board of medical examiners of the state of Iowa, and recorded in the office of the county recorder of Jasper county, Iowa, a certificate authorizing the said [defendant] to practice as such, contrary to and in violation of law.”

3. State v. Edmunds, 127 Iowa, 333, 101 N. W. 431,State v. Corwin, 151 Iowa, 420, 131 N. W. 659, and State v. Zechman, 157 Iowa, 158, 138 N. W. 387, determine, as we view it, that the indictment at bar is not bad for duplicity.

[2] II. We agree with appellant that statutes regulating the practice of medicine, and providing penalties for failure to comply with conditions imposed upon such practice, include all who practice the art of healing, whatever the therapeutic agency employed, and that, therefore, one practicing osteopathy is, at least for the purposes of such statutes, practicing medicine. Bragg v. State, 134 Ala. 167, 32 South. 767, 58 L. R. A. 925;State v. Gravett, 65 Ohio St. 289, 62 N. E. 325, 55 L. R. A. 791, 87 Am. St. Rep. 605.

We agree, for the sake of the argument, with the contention that statutes for the purpose of enforcing conditions upon the right to practice medicine are held by the following cases to include almost any profession to heal, or action for the purpose of healing: State v. Corwin, 151 Iowa, 420, 131 N. W. 659;State v. Zechman, 157 Iowa, 158, 138 N. W. 387;Ligon v. State, 145 Ala. 659, 39 South. 662;State v. Heath, 125 Iowa, 585, 101 N. W. 429;State v. Edmunds, 127 Iowa, 333, 101 N. W. 431;Little v. State, 60 Neb. 749, 84 N. W. 248, 51 L. R. A. 717--but are at loss to understand what materiality the claim or concession have, unless it be because of a contention that...