State v. Cotner

• Decision Date: 12 October 1912
• Docket Number: 18,140
• Citation: State v. Cotner, 87 Kan. 864, 127 P. 1 (Kan. 1912)
• Parties: THE STATE OF KANSAS, Appellee, v. J. W. COTNER, Appellant
• Court: Kansas Supreme Court

127 P. 1

87 Kan. 864

THE STATE OF KANSAS, Appellee, v. J. W. COTNER, Appellant

No. 18,140

Supreme Court of Kansas

October 12, 1912

Decided July, 1912.

Appeal from Smith district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MEDICINE--Practicing without Certificate--Penalties. The statute providing that any person who shall practice medicine in this state without having received and recorded a certificate from the state board of registration and examination shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than fifty dollars nor more than two hundred dollars (Gen. Stat. 1909, § 8091) does not create a continuing offense involving a general course of customary conduct but penalizes each specific act of practice defined in the preceding section (Gen. Stat. 1909, § 8090).

R. W Turner, of Mankato, F. W. Mahin, I. M. Mahin, and W. E. Mahin, all of Smith Center, for the appellant.

John S. Dawson, attorney-general, S. M. Hawkes, assistant attorney-general, and L. C. Uhl, jr., county attorney, for the appellee.

OPINION

BURCH, J.:

The defendant was convicted of practicing medicine without having received and recorded a certificate from the board of medical registration and examination. The information contained fifteen counts and the defendant was found guilty upon eight of them. Of the eight, one was for opening an office for the reception and treatment of patients, placing a sign over the door indicating that the defendant was authorized to practice medicine, and thus advertising himself as qualified under the law to treat the sick and others afflicted with bodily infirmities. Two counts were for treating two persons on June 15, 1910. The remaining five counts were for treating different persons on different days between April 17, 1910, and January 15, 1911. The district court held, against objections seasonably made, that each count stated a separate offense, and sentenced the defendant to pay eight several fines. The question raised by this appeal is whether or not practicing medicine without a license is a continuing offense for which only a single penalty may be imposed for the entire time antedating the prosecution. This question is one of statutory interpretation.

The act relating to medical registration and examination (Laws 1901, ch. 254) establishes a standard of qualification to practice medicine and surgery, creates a board to ascertain the fitness of persons desiring to engage in such practice, and provides for the issuing and recording of certificates to applicants who are able to meet the statutory requirements. Section 6, as subsequently amended (Laws 1908, ch. 63, § 1), reads in part as follows:

"Any person shall be regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatsoever nature for the cure or relief of any wounds, fracture or bodily injury, infirmity or disease of another person, or who shall use the words or letters "Dr." "doctor," "M. D.," or any other title in connection with his name, which in any way represents him as engaged in the practice of medicine or surgery, or any person attempting to treat the sick or others afflicted with bodily or mental infirmities, or any person representing or advertising himself by any means or through any medium whatsoever, or in any manner whatsoever, so as to indicate he is authorized to or does practice medicine or surgery in this state, or that he is authorized to or does treat the sick or others afflicted with bodily infirmities, . . . nor shall anything in this act apply to the administration of domestic medicines, nor to prohibit gratuitous services." (Gen. Stat. 1909, § 8090.)

Section 7 reads as follows:

"From and after the 1st day of September, 1901, any person who shall practice medicine and surgery or osteopathy in the state of Kansas without having received and had recorded a certificate under the provisions of this act, or any person violating any of the provisions of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than fifty dollars nor more than two hundred dollars for each offense, and in no case wherein this act shall have been violated shall any person so violating receive compensation for services rendered. It shall be the duty of the secretary of the state board of registration and examination to see that this act is enforced." (Gen. Stat. 1909, § 8091.)

It is elementary that a single offense can not be divided into several parts, whether of time or of conduct, for the purpose of basing separate prosecutions upon the various divisions. A nuisance resulting from the execution of a single design will support but one conviction, although maintained for a number of days or weeks or months, and a single beating entails but one punishment although the event include the striking of a number of blows. But the question whether a statute is directed against a general course of conduct involving customary or habitual acts, or against the individual acts themselves, considered in isolation, is frequently quite difficult of determination. There are no specific rules which solve the problem to a certainty, and the legislative intention must be gained from all intrinsic and extrinsic indications which the law recognizes as helpful to correct interpretation. Some of the cases, however, yield to classification under general principles.

The act of 29 Car. II, c. 7, s. 1, 8 Stat. at Large, p. 412, providing that "no tradesman . . . or other person whatsoever shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord's day, . . . works of necessity and charity only excepted," was violated but once by a baker who made six sales of "small hot loaves of bread, commonly called rolls," on a single Sunday. (Crepps v. Durden, Cowper's Reports, 640.) The opinion in this case, decided in 1777, was delivered by Lord Mansfield, who said:

"If the act of parliament gives authority to levy but one penalty, there is an end of the question, for there is no penalty at common law. On the construction of the act of parliament, the offence is, 'exercising his ordinary trade upon the Lord's day;' and that, without any fractions of a day, hours, or minutes. It is but one entire offence, whether longer or shorter in point of duration; so, whether it consist of one, or of a number of particular acts. The penalty incurred by this offence is five shillings. There is no idea conveyed by the act itself, that, if a tailor sews on the Lord's day, every stitch he takes is a separate offence; or, if a shoe-maker or carpenter work for different customers at different times on the same Sunday, that those are so many separate and distinct offences. There can be but one entire offence on one and the same day: and this is a much stronger case than that which has been alluded to, of killing more hares than one on the same day: killing a single hare is an offence: but the killing ten more on the same day will not multiply the offence, or the penalty imposed by the statute for killing one. Here, repeated offences are not the object which the legislature had in view in making the statute: but singly, to punish a man for exercising his ordinary trade and calling on a Sunday."

This decision has been generally accepted as correctly interpreting "Sunday Laws" (see Friedeborn v. Commonwealth, 113 Pa. 242, 6 A. 160, decided in 1886) and is manifestly sound. The statute of Charles was intended to prevent the desecration of the Sabbath as a day for religious practices and observances. In the United States such statutes are justified on broader grounds, but the purpose is to secure immunity for the first day of the week from the stress and turmoil of ordinary secular employments. The usual avocations of men are not condemned for any inherent unwholesomeness. They suffer no metamorphosis on Saturday night. The legislature looks to the protection of the day, and no matter how the Sabbath-breaker conducts himself on a given Sunday, he has merely done violence to the character of that day.

The keeping of forbidden places, such as gambling houses, disorderly houses, and places for the illegal sale of liquors, and maintenance of forbidden relations such as unlawful cohabitation, constitute continuing offenses. The same is true of abandonment, the gist of which is the act of separation. (State v. Dunston, 78 N.C. 418.) In such cases the statutes usually concern themselves with the obnoxious place, or with the status created, and not with plurality of acts, occasions, or objects. The case of In re Snow, 120 U.S. 274, 30 L.Ed. 658, 7 S.Ct. 556, belongs to this class. Snow was charged with unlawfully cohabiting with more than one woman in three indictments for separate periods which, taken together, covered a continuous period of two years and eleven months. In the opinion the court said:

"The offense of cohabiting with more than one woman, in the sense of the section of the statute on which the indictments were founded, may be committed by a man by living in the same house with two women whom he had theretofore acknowledged as his wives, and eating at their respective tables, and holding them out to the world by his language or conduct, or both, as his wives, though he may not occupy the same bed or sleep in the same room with them, or either of them, or have sexual intercourse with either of them. The offense of cohabitation in the sense of this statute, is committed if there is a living or dwelling together as husband and wife. It is inherently a continuous offense, having duration,...