State v. Corwin

• Decision Date: 06 June 1911
• Citation: State v. Corwin, 151 Iowa 420, 131 N.W. 659 (Iowa 1911)
• Parties: STATE OF IOWA v. GEORGE D. CORWIN, Appellant
• Court: Iowa Supreme Court

131 N.W. 659

151 Iowa 420

STATE OF IOWA v. GEORGE D. CORWIN, Appellant

Supreme Court of Iowa, Des Moines

June 6, 1911

Appeal from Powesheik District Court.--HON. H. BANK, JR., Judge.

THE accused was convicted of having practiced as a physician without having first obtained a license, and appeals. Affirmed.

Affirmed.

Morris & Hartwell and Talbott & Talbott, for appellant.

George Cosson, Attorney-General, and John Fletcher, Assistant Attorney-General, for the State.

OPINION

LADD, J.

The defendant was accused of having professed and actually undertaken to cure and heal without having obtained and caused to be recorded a certificate from the State Board of Medical Examiners; the indictment charging that he "did willfully and unlawfully assume the duties of a physician and make a practice of treating persons afflicted with diseases and did then and there willfully and unlawfully publicly profess to cure and heal persons afflicted with disease by a system of treatment called 'chiropractic.'" He moved that the indictment be set aside for that, among other things, it was defective, in that no more than a legal conclusion was pleaded therein and several offenses were joined in a single count.

I. Section 2579 of the Code defines who shall be deemed practicing medicine, surgery, or obstetrics or as a physician, and, as pointed out in State v. Heath, 125 Iowa 585, 101 N.W. 429, these are divided into three classes: (1) All "who shall publicly profess to be a physician or surgeon or obstetrician and assume the duties;" (2) those "who shall make a practice of prescribing and furnishing medicine for the sick;" and (3) those "who publicly profess to cure or heal." Section 2580 of the Code imposes a penalty on any person who by his conduct brings himself within any of these classes. So that, construing the statutes together they enumerate several acts disjunctively which may constitute the offense of practicing as a physician without a license, and the doctrine is well settled that "when several acts are enumerated disjunctively as constituting an offense, and are not repugnant to each other, they may be alleged conjunctively in an indictment without duplicity." State v. Hubbell, 137 Iowa 570. The different acts which constitute the offense in one practicing without a license are not necessarily inconsistent with each other, and the indictment, even if it had charged the acts of the defendant such as to bring him within all three classes, would not have been vulnerable to the criticism of charging more than one offense.

Nor was there error in ruling that the facts were pleaded with sufficient particularity. These were stated, in substance, in the language of the statute, and the rule prevails that when this so individuates the offense that the offender has proper notice from the statutory terms of the particular offense charged it is enough. State v. Porter, 105 Iowa 677, 75 N.W. 519; State v. Bair, 92 Iowa 28, 60 N.W. 486. See State v. Wilhite, 132 Iowa 226, 109 N.W. 730. A specific detail of the particular things done was not essential to apprise the accused of the offense charged. It was sufficient for that purpose to allege the acts declared by the statute to constitute the offense.

II. The record does not affirmatively indicate that defendant was arraigned or waived arraignment, but from the very silence of the record and his proceeding to the trial without objection, arraignment or waiver thereof is to be presumed. State v. Winstrand, 37 Iowa 110; State v. Bowman, 78 Iowa 519, 43 N.W. 302; State v. Thompson, 95 Iowa 464, 64 N.W. 419.

Nor is defendant in a situation to take advantage of his omission to plead. As he was not put on trial until about two months after the motion to set aside the indictment had been overruled, ample time was afforded to prepare for his defense, and, as he was tried in every respect as though he had pleaded "not guilty," he could not have been prejudiced by the irregularity, and for this reason can not be heard to complain. State v. Greene, 66 Iowa 11, 23 N.W. 154; State v. Hayes, 67 Iowa 27, 24 N.W. 575; State v. Jones, 70 Iowa 505, 30 N.W. 750; State v. Bowman, supra; State v. Thompson, supra.

III. Appellant next contends that the operation of the statutes should be limited to those professing or undertaking to practice medicine and surgery. The state may determine what acts constitute practice as a physician, and may impose conditions on the exercise of that privilege. State v Mosher, 78 Iowa 321, 43 N.W. 202; State v. Bair, 112 Iowa 466, 84 N.W. 532. And we have construed the statutes of this state to include those who without medicine or the practice of surgery publicly profess to cure and heal. State v. Heath, 125 Iowa 585, 101 N.W. 429; State v. Wilhite, 132 Iowa 226, 109 N.W. 730; State v. Miller, 146 Iowa 521, in which the accused was a chiropractor. See State v. Johnson (Kan.), 84 Kan. 411, 114 P. 390. And in the opinions in these cases and ...