State v. Davis

• Citation: 92 S.W. 484,194 Mo. 485
• Parties: STATE v. DAVIS.
• Decision Date: 06 March 1906
• Court: United States State Supreme Court of Missouri

92 S.W. 484

194 Mo. 485

STATE v. DAVIS.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. CRIMINAL LAW—JUSTICES OF THE PEACE— CRIMINAL JURISDICTION—EXTENT.

Under Rev. St. 1899, § 2769, providing that, on a defendant entering his plea of not guilty before a justice of the peace, the case may be tried by the justice if no jury be demanded, the justice, in trying a criminal prosecution without a jury, is not bound to decide the case instanter on submission, and does not lose jurisdiction by taking the same under advisement until the following day.

2. SAME—INSTRUCTIONS—FORM OF VERDICT.

Where the court submitted a form of verdict to be used in case the jury found defendant not guilty, and charged that defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, etc., the submission of a form of verdict to be used in case the jury found defendant guilty, in connection with the instructions, was not erroneous as tending to mislead the jury to believe that such verdict was a direction by the court to find defendant guilty.

3. PHYSICIANS AND SURGEONS—PRACTICING WITHOUT LICENSE—OFFENSES—STATUTES— EVIDENCE.

Laws 1901, pp. 207, 208, § 1, makes it unlawful for any nonregistered person to practice medicine or surgery. Section 4 provides for the registration of licenses to practice medicine and makes any neglect to record a license a misdemeanor, and section 5 declares that any person, except registered physicians, practicing medicine or surgery in the state, or attempting

to treat the sick without first obtaining a license from the state board of health, shall be deemed guilty of a misdemeanor and shall be punished, etc. Held, that where defendant, a nonregistered physician residing in Illinois, came to a room at a hotel in Missouri and there held himself out as a physician, diagnosed the ailment of a patient and sent medicine to the patient from Illinois, for which defendant charged and received $5 per month, he was guilty of a violation of such act.

4. CRIMINAL LAW — INSTRUCTIONS — REFUSAL OF REQUEST.

It is not error for the court to refuse an instruction requested by accused which is substantially covered by instructions given.

5. CONSTITUTIONAL LAW—PRACTICE OF MEDICINE —VESTED RIGHTS.

A physician and surgeon not shown to have been registered in Missouri under any prior existing statute, by merely practicing medicine in that state for a number of years prior to his removal to another state, did not acquire a vested right so to do, so as to render him immune from punishment for violating Acts 1901, pp. 207, 208, prohibiting nonregistered persons from practicing medicine in Missouri.

Appeal from Circuit Court, Scotland County; Charles D. Stewart, Judge.

John M. Davis was convicted of practicing medicine without a license, and he appeals. Affirmed.

This cause is here by appeal from a judgment of conviction of the defendant in the Scotland county circuit court for practicing medicine without a license or any other authority so to do. This prosecution was begun before a justice of the peace of Scotland county on February 4, 1905. Omitting formal parts of the information, it charges the offense as follows: "John E. Luther, prosecuting attorney within and for the county of Scotland in the state of Missouri, informs John B. Montgomery, a justice of the peace of said county of Scotland, that on the 15th day of December, 1904, at the county of Scotland aforesaid, one John M. Davis did unlawfully practice medicine by then and there prescribing for, issuing medicine to, and treating one Arthur Hoover, for the cure of disease and bodily affliction; the said John M. Davis not then and there being a licensed physician of the state of Missouri, nor having any legal authority to practice medicine or treat the sick and afflicted, against the peace and dignity of the state." This cause was first tried before the justice on an agreed statement of facts on the 4th of April, 1905; the cause being submitted, the justice took it under advisement until the next day, the 5th of April, 1905, when he rendered judgment against the defendant, finding him guilty, and assessing his punishment at a fine of $100. From this judgment defendant prosecuted his appeal to the circuit court of Scotland county. The cause came on for a hearing and trial at the May term, 1905, of the circuit court. Before the trial the defendant filed a motion praying for the discharge of the defendant on the grounds that upon the face of the transcript from the justice it appeared that the justice had lost jurisdiction of the cause before he rendered a judgment, and that when he did render judgment he had no jurisdiction so to do, as this was a criminal cause, and the justice was without authority to take the case under advisement. This motion was by the court overruled, and the trial of the cause preceeded. We have read in detail the testimony introduced at the trial, which was substantially as follows: The state's evidence tended to prove that one Arthur Hoover was suffering from blood poison, and, learning the defendant was a good physician, went to see defendant at a hotel in Memphis, in Scotland county. The defendant told Mr. Hoover that he (defendant) was a physician, and showed Hoover some blanks with questions on them. That defendant then examined Hoover, diagnosed his case, and prescribed for him. That defendant lived in Hamilton, Ill., and sent bottles of medicine to Hoover by express, from Warsaw, Ill. That Hoover took the medicine according to defendant's directions and according to the instructions on the bottle, and paid defendant $5 a month. That these payments were made to defendant, and Hoover had an interview with defendant in the hotel in Memphis the first Monday in every month, beginning in November, 1904. That defendant had no diploma, no license from the state board of health, and was not registered as a physician in Scotland county. The defendant's evidence tended to prove that he lived in Hamilton, Ill., sent medicine to Mr. Hoover by express and by mail. That this medicine was sent when the patient would fill out one of defendant's printed blanks. That defendant had been practicing medicine ever since 1857, was formerly located in St. Louis, had practiced in Edina, but had not been located in Missouri for a number of years. That he had studied the allopathic system of medicine, but had never registered in Missouri, and had never been licensed by the state board of health.

At the close of the evidence, the court, at the instance of the state, gave the following instructions: "(1) The court declares the law to be that if you find from the evidence that the defendant, John M. Davis, at the county of Scotland and state of Missouri, at any time within one year next before the filing of this information, did publicly profess to be a physician, and that by reason of his publicly professing to be a physician, one Arthur Hoover accepted his services in his professional capacity by calling upon defendant and defendant prescribed for, treated, and issued medicine to said Arthur Hoover, who was then and there a sick person; and that the defendant, at the time of so prescribing for, treating, or issuing medicine to said Arthur Hoover, was not a registered physician of the state of Missouri, and had no certificate issued by the board of health of the state of Missouri, authorizing him to practice medicine in the state of Missouri, you should find the defendant guilty as charged, and assess his punishment at a fine of not less than $50 nor more than $500, or at imprisonment in the county jail not less than 30 days nor more than one year, or at both such fine and imprisonment. (2) The court declares the law to be that the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt; but a doubt, to authorize an acquittal, must be a substantial doubt of defendant's guilt and not a mere possibility of his innocence." In submitting the instructions the court submitted a blank form for a verdict of guilty. At the request of the defendant the court instructed the jury as follows: "(5) The information in this cause charges the defendant with unlawfully practicing medicine by prescribing for, issuing medicine to, and treating one Arthur Hoover for the cure of a disease and bodily affliction, and that the same was done in the county of Scotland and the state of Missouri, and unless you so find and believe from the evidence beyond a reasonable doubt, you should acquit the defendant. (6) If your verdict be for the defendant, it may be in the following form: `We, the jury, find the defendant not guilty. _____, Foreman.'" Defendant requested the court to instruct the jury as follows: "(1) If you believe from all the evidence in the case that the defendant merely examined a patient in the state of Missouri, and afterwards, on the application of the patient, sent him medicine from the state of Illinois when he so ordered and desired it, this is not practicing medicine in the state of Missouri in the meaning of the law, and you should find the defendant not guilty. (2) The law is intended to punish only those who prescribe and administer medicine as a profession, within the state of Missouri. It does not apply to physicians who live in another state and, upon application of patients, send medicine into the state of Missouri to be taken by said person, and before you would be authorized to find the defendant guilty you must believe beyond a reasonable doubt that he followed the profession of a physician in the state of Missouri by prescribing medicine within the state as a calling. (3) If you believe from the evidence that the medicine prescribed by the defendant was compounded and prepared by him in the state of Illinois upon the application of patients in Missouri, and was so taken by the patient after the same was sent to Missouri, and that the defendant was a resident of the state of Illinois,...