State v. Douglas
Decision Date | 05 November 1927 |
Docket Number | 27,740 |
Citation | 260 P. 655,124 Kan. 482 |
Parties | THE STATE OF KANSAS, Appellee, v. T. W. DOUGLAS, Appellant |
Court | Kansas Supreme Court |
Decided July, 1927.
Appeal from Rawlins district court; EDWARD E. KITE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. INDICTMENT AND INFORMATION--Statement of Offense--Disjunctive Language of Statute. The overruling of a motion to quash a count in an information because the disjunctive "or" is used in the charging clause instead of the conjunctive "and," when it follows the language of the statute and refers to things as objects rather than the doing of things, and where it is used between synonymous words or terms rather than distinct alternatives, is not reversible error.
2. SAME--Allegation of Place. Where one is charged in an information with having, in the county of Rawlins and state of Kansas, advertised through the columns of a local newspaper and by circulated handbills and cards that he treats the sick, without stating in the information that he does so in the state of Kansas, the information is sufficient by reason of the second subdivision of R. S. 62-1011.
3. PHYSICIANS AND SURGEONS--Practicing Without Certificate. The several assignments of error considered, and held, there was no substantial error committed in the trial of the case.
J. P Noble, of Oberlin, Forest W. Brown, of Goodland, M. V. B. Van de Mark, of Concordia, and John E. Butcher, of Kansas City, Mo., for the appellant.
William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, C. A. P. Falconer and Herbert Howland, both of Atwood, for the appellee.
OPINION
The appellant, T. W. Douglas, was convicted in the district court of Rawlins county on four counts. The first charged him with advertising in the Herndon Nonpareil, a newspaper published in Rawlins county, and the second with passing out to the public in Herndon, Kan., handbills and cards, representing and indicating thereby that he treated the sick or others afflicted with bodily infirmities. The third and fifth counts charged him with having prescribed and recommended, for fees, drugs and medicine for the cure and relief of bodily infirmity and disease of Maude Carlson in the third count, and Francis Anderson in the fifth count; in all of the counts without having received or recorded a certificate from the board of medical registration and examination of the state of Kansas. The advertisement, mentioned in the first count as exhibit A, is as follows:
The handbills and cards, mentioned in the second count as exhibits B and C, are as follows:
PROF. TOM DOUGLAS, Vice Pres.
OFFICE HOURS, 10 a. m. to 10 p. m. daily.
PROPRIETARY MIXTURES SYNDICATE, INC.
4420 Prospect Ave., Kansas City, Missouri.
FORMULATION FROM GREEN ROOTS AND HERBS.
For Rheumatism, Liver, Stomach, Kidney and Lung Trouble.
Uterine Diseases a Specialty.
Send Birth Date to Ascertain Cause of Complaint.
PROF. TOM DOUGLAS, Demonstrator.
YONGA YOGA, Scientist.
Join His Class Now."
The motions of the appellant to quash the first and second counts and strike out exhibit B were overruled; likewise his demurrer to the evidence. He was acquitted on the fourth count. The statutes of Kansas under which this action is prosecuted are as follows:
"From and after the 1st day of September, 1901, any person who shall practice medicine and surgery 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. . . ." (R. S. 65-1006.)
It is earnestly contended that the first and second counts of the information should have been quashed because of the use of the disjunctive "or," as in the statute, instead of the conjunctive "and," as it should have been charged. We are inclined to think the use of the word "and" might have been preferable in the charging clause, but the use of the disjunctive, we think, is well within the rule, especially when it follows the statute. It would not be within the rule if it were concerning the alleged doing of something by the defendant, as in the case of State v. Seeger, 65 Kan. 711, 70 P. 599, but here it concerns the objects--the ones whom the defendant treated. When that which follows the disjunctive explains the word preceding it or connects synonymous words it is within the well-established rule. (51 L.R.A. N.S. 135; 31 C. J. 707; 3 Words and Phrases, 759.) The word "sick," as used in ...
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