State v. Errington

Decision Date12 March 1962
Docket NumberNo. 48352,48352
Citation355 S.W.2d 952
PartiesSTATE of Missouri, Respondent, v. Robert G. ERRINGTON, Appellant.
CourtMissouri Supreme Court

James L. McMullin, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Robert G. Errington, whose 'right name' according to testimony he gave in support of a preliminary motion is 'Herman Heinrich Gotthold Helmers,' was found guilty (in a jury waived case) of practicing medicine without a license in violation of Sec. 334.030 RSMo 1949, V.A.M.S. (now repealed), a misdemeanor, and he was sentenced to confinement in the county jail for one year and a fine of $1,000. He has appealed from the ensuing judgment and asserts among other things that the above statute is unconstitutional. Jurisdiction of the appeal is in this court.

The substitute information on which appellant was tried charged that 'on the 29th day of May, 1959, * * * [he] did then and there unlawfully and wilfully attempt to treat one Ethel Wales Strunk, who at that time was sick, and that the said Robert G. Errington practiced medicine without being duly licensed by the Missouri State Board of Medical Examiners, * * *.' Sec. 334.030, upon which the information was based, was repealed effective August 29, 1959, and the substance thereof was reenacted as Secs. 334.010 and 334.250 RSMo 1959, V.A.M.S. cumulative supplement. The substitute information was filed October 16, 1959. The institution of the action subsequent to the repeal of the statute for a violation alleged to have occurred before its repeal is specifically authorized by Sec. 1.160 RSMo 1959, V.A.M.S. Reference hereafter to statutes, unless otherwise stated, will be to them as they existed at the time of the alleged offense although a substantial change was made to Chapter 334 effective August 29, 1959.

Appellant maintained an office at 100 East 63rd Street, Kansas City, Missouri. He was listed in the 'yellow pages' of the Kansas City telephone directory as follows: 'Conservatory of Health, Dr. Robert G. Errington, Naturopathic Physician, Jackson 3-9201.' On May 26, 1959, Ethel Wales Strunk called in person at appellant's office because, as she said, her condition was 'run down.' After appellant talked to her he told her that 'it sounded like' she was 'anemic and run down,' that there was 'probably something else wrong, perhaps gallstones,' that he had a series of 18 treatments which 'would get rid of them' and that the cost would be '$178.00 plus vitamins.' Miss Strunk gave appellant a check for 'the down payment' in the amount of $50 and was told to return on the following Friday morning, May 29, to receive a 'dose of medicine.' At that time appellant and his wife, referred to as his nurse, gave Miss Strunk 'a glass full of medicine' which was 'sort of pinkish-white.' Miss Strunk testified that appellant said it was 'a mild laxative' to 'clean me out before they gave me the other dose of medicine.' That evening, after she arrived home, she was 'sort of sick' at her stomach and she felt as though she had taken 'quite a laxative.' By pre-arrangement appellant's nurse went home with Miss Strunk, and the nurse gave her 'a glass of sort of yellowish, oily substance to drink.' About midnight she became 'real sick' and vomited a 'greenish substance.' She was too sick to go to work on the following Monday and Tuesday. On June 2, 1959, she returned to appellant's office. She was placed on a 'sort of vibration table,' was given 'hot and cold baths in a big tub,' and was placed in front of a series of sun lamps. Appellant then came in and gave her an 'adjustment.' He 'popped [her] neck and back,' which was 'supposed to help * * * circulation.' Miss Strunk testified that at this time appellant 'assumed' that she had gotten rid of the gallstones by reason of the previous treatment.

Miss Strunk asked appellant if he 'studied to get his degree like most other licensed physicians do,' and he replied that he did and that he was a licensed doctor. She and appellant then discussed 'vitamins [she] would have to have.' Appellant gave her 'calcium powder' out of a gallon can for which she paid him $10.50. On June 9 she returned to appellant's office and 'went through the series of treatments of the hot and cold baths and the adjustment again.' At this time appellant gave her four bottles of vitamins, 'it was A, C, D and E,' which he said would 'help build [her] up,' but at the time her condition 'had gotten worse.' For these vitamins Miss Strunk paid appellant $44.60.

On June 16 and again on June 23 Miss Strunk received another 'series of treatments.' On June 16 appellant gave her another bottle of vitamins, 'B-Complex, he called them' for which she paid $12.20. By this time Miss Strunk 'was wondering about him' and also about the price of the vitamins. He 'mentioned he had to have a special license to administer vitamins in less than 100, because the bottles were sealed,' but the bottle he had given Miss Strunk had not been sealed. She discussed this with him but he 'really didn't have an explanation for the fact the bottles weren't sealed.'

Miss Strunk received no further treatments from appellant, but she returned on July 1, 1959 to have him fill out an insurance form. Appellant filled in the answers on a 'physician's Statement.' In answer to the question 'Your diagnosis,' he wrote in the word 'Choledochitis.' He also made check marks to show that her condition was due to illness and not an accident and that the illness was a 'primary condition.' He wrote the word 'Indigestion' in answer to the question, 'What other disease is it secondary to, complicated with, or a sequence of.' In answer to the question, 'Dates you treated patient for this condition' he wrote 'May 26' for treatment 'at office,' and he wrote 'May 27-28-29-30 June 1-2-3-16, 23-30' for treatments 'At home.' He made a check mark indicating that the 'patient [had no] chronic or constitutional disease, physical defect or deformity.' The form had a place for signature as follows: 'Signed _____ M.D.' Here appellant wrote 'Dr. Robert G. Errington,' and without marking out the printed letters 'M.D.' he wrote over them what appears to be 'N.D.'

There is no contention that appellant was or has been licensed by this State to engage in the practice of medicine or any of the healing arts, and it affirmatively appears that he was not licensed by the board of medical examiners referred to in Sec. 334.020. In the latter part of 1958 appellant was enjoined by this court from the practice of medicine on the basis that he was not licensed by this State to practice medicine and that such unlicensed practice constituted a continuing public nuisance detrimental to the public health and contrary to and against the public policy of this State. See State v. Errington, Mo.Sup., 317 S.W.2d 326, certiorari denied 359 U.S. 992, 79 S.Ct. 1122, 3 L.Ed.2d 980.

Appellant asserts that Sec. 334.030 does not define the term 'practice of medicine' and for this reason does not proscribe any activity as a crime.

"It is, of course, true that the defendant in a criminal cause has a constitutional right to demand the nature and cause of the accusation against him, and a criminal statute must be sufficiently clear that there can be no doubt as to when such statute is being violated." State v. King, Mo.Sup., 303 S.W.2d 930, 935. In Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 707, 95 L.Ed. 886, it was stated that 'The essential purpose of the 'void for vagueness' doctrine is to warn individuals of the criminal consequences of their conduct.' In that case it was further ruled that 'difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 1930, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508. Impossible standards of specificity are not required. United States v. Petrillo, 1947, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' See also Berger v. United States, 8 Cir., 200 F.2d 818. The certainty required may be accomplished by the use of words or terms of common understanding and settled meaning. 22 C.J.S. Criminal Law Sec. 24, p. 73; 14 Am.Jur. Criminal Law Sec. 19; Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447; People v. Ring, 26 Cal.App.2d Supp. 768, 70 P.2d 281 (statute made it a misdemeanor for one not a member of the bar to 'practice law'); Goldstine v. State, 234 Ind. 388, 126 N.E.2d 581; State v Bobbins, 35 N.J.Super. 494, 114 A.2d 474; Annotation 96 L.Ed. 374, 378. Conduct proscribed by Sec. 334.030 included the 'practice of medicine,' a term of common understanding and meaning and universally accepted to include, although not necessarily limited to, the acts of one publicly representing himself to be trained in the treatment and cure of ills of the human body and purporting for a fee to diagnose bodily ills and effectuate a cure or an alleviation thereof. See State v. Smith, 233 Mo. 242, 135 S.W. 465, 33 L.R.A.,N.S., 179; State v. Davis, 194 Mo. 485, 92 S.W. 484, 4 L.R.A.,N.S., 1023; State ex rel. Collett v. Errington, supra; State ex rel. Collett v. Scopel, Mo.Sup., 316 S.W.2d 515; 41 Am.Jur., Physicians and Surgeons Sec. 24; 70 C.J.S. Physicians and Surgeons Sec. 10. The information fully advised appellant of the acts contended by the State to constitute the practice of medicine. The evidence established that the conduct of appellant did constitute the practice of medicine in the generally accepted and understood meaning of that term which Sec. 334.030 proscribed and declared to constitute a misdemeanor unless done by one duly licensed as provided by law of excused from...

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