State v. Hathaway

• Court: Missouri Supreme Court
• Writing for the Court: Gantt
• Citation: State v. Hathaway, 115 Mo. 36, 21 S.W. 1081 (Mo. 1893)
• Decision Date: 20 March 1893
• Parties: STATE v. HATHAWAY.

21 S.W. 1081

115 Mo. 36

STATE v. HATHAWAY.

Supreme Court of Missouri.

March 20, 1893.

PRACTICING MEDICINE WITHOUT CERTIFICATE — CONSTITUTIONAL LAW — JUDICIAL POWERS — CLASS LEGISLATION — APPEAL.

1. Where an information under Act April 2, 1883, (Rev. St. 1889, c. 110, art. 1,) for practicing medicine without a certificate from the board of health, alleges that defendant is not within any of the excepted classes created by that act, the negative averment is taken as true, unless disproved by defendant, since the subject-matter of such averment lies peculiarly within his knowledge.

2. In a criminal prosecution the supreme court will not presume that a letter not in the record on appeal was erroneously admitted by the trial court.

3. Act April 2, 1883, (Rev. St. 1889, c. 110, art. 1,) which vests the board of health with power to examine, not only into the literary and technical acquirements of an applicant for a certificate to practice medicine, but also into his moral character, does not confer on the board judicial power, within the meaning of Const. art. 3, and article 6, § 1, which provides that judicial power can be exercised only by the courts of the state, since the judicial functions meant by the constitution are such only as courts or judges exercise.

4. The fact that the statute excepts from its operation those who have been practicing medicine five years within the state does not render the act void as class legislation, since the act operates equally on all physicians engaging in the practice after the act took effect.

In banc. Appeal from circuit court, Nodaway county; C. A. Anthony, Judge.

J. N. Hathaway was convicted for practicing medicine without a certificate, and appeals. Affirmed.

C. M. Napton, for appellant. R. F. Walker, Atty. Gen., for the State.

GANTT, J.

This is a proceeding by information preferred in the circuit court of Nodaway county by the prosecuting attorney. It charges that the defendant, at said county, on the 1st day of October, 1889, did unlawfully and willfully engage in the practice of medicine by publicly professing to be a physician, and by then and there prescribing for one Olive A. Rowley, without being then and there authorized to practice as aforesaid by having a certificate as a physician duly issued to him by the board of health of the state of Missouri, and without having said certificate recorded in the county where defendant resided. The information duly negatived the fact that defendant had practiced medicine five years prior to July 1, 1883; and that he was a student prescribing under a preceptor, or that his medical services were rendered gratuitously, in an emergency, or that he was a surgeon of the United States army or navy, or the marine hospital service. Defendant moved to quash the information, because the information was not duly verified, that it stated no offense, and that the law upon which it is based is unconstitutional. The motion was overruled, and the cause tried to the court without a jury, the jury having been waived. The testimony shows that the defendant was located at the Linville Hotel, in the city of Maryville, in the county of Nodaway, Mo., in the summer of 1889, engaged in the practice of medicine. He had his professional card or advertisement published in the Maryville Republican, a newspaper printed and published in said city and county, and had an office at the Linville Hotel, where he consulted with and prescribed for patients. Mrs. Olive A. Rowley, having seen his advertisement in the paper, and being afflicted with diseased hands, on the 24th day of August, 1889, in company with her husband, went and called for defendant at said hotel. Defendant appeared at the door, and was asked by Mr. Rowley if he was Dr. Hathaway. He replied that he was, and asked them into his office. They went in, and consulted with defendant with regard to Mrs. Rowley's diseased hands, and the treatment they should have. Defendant examined Mrs. Rowley's hands, and pronounced the disease eczema. He said he thought he could cure the disease but it would take some time. Mr. Rowley proposed that he would pay him if he succeeded in curing the disease, but the defendant declined the proposition, saying that he did not practice in that way; that he had $10 a visit. He then prescribed for Mrs. Rowley's hands, — that is, told them what to do, — and said that he would send them some medicine to be used, from St. Joseph. Mr. Rowley paid him for this consultation and prescription $10 at this time. On the 25th or 26th of August, the medicines were expressed from St. Joseph to Mrs. Rowley. Defendant continued treating Mrs. Rowley's hands until some time in October following. Defendant did not offer any evidence in the trial. The court instructed as follows: "No. 1. The court declares the law to be that the defendant is presumed to be innocent until proved guilty beyond a reasonable doubt; but a doubt, to authorize an acquittal, must be a substantial doubt of defendant's guilt, and not mere possibility of his innocence. No. 2. The court declares the law to be that if it appears from the evidence that the defendant, Hathaway, at the county of Nodaway and state of Missouri, on or about the 1st day of October, 1889, or at any time within one year next before the 15th day of March, 1890, did publicly profess to be a physician, and that, by reason of his so publicly professing to be a physician, one Olive A. Rowley accepted his services in his professional capacity, by calling upon defendant, and defendant prescribed for said Rowley, who was then and there a sick person, and that the defendant at the time of so prescribing for said Rowley had no certificate issued by the board of health of the state of Missouri, the court should find defendant guilty, and assess his punishment at a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for not less than 30 days, nor more than one year, or by both such fine and imprisonment." The defendant thereupon asked the court to declare the law of the case as follows, to-wit: "No. 1. The court declares the law to be that, under the information and the evidence introduced in this case, the court must, sitting as a jury, find the defendant not guilty as charged in said information. No. 2. Unless the court sitting as a jury shall find, beyond a reasonable doubt from the evidence in this case, that on the 24th day of August, 1889, or prior thereto, at the county of Nodaway and state of Missouri, the defendant held himself out publicly to the community, and to Mrs. Olive Rowley, as a physician, and that she on said day applied to him as such physician to treat her for a disease of the hands, with which she was then afflicted, and that the defendant did, as such physician, prescribe medicine for the cure of her said disease, then it was not necessary that said defendant should have recorded in the office of the county court of either Buchanan or Nodaway counties, in said state, a certificate from the state board of health, and the defendant is not guilty as charged in the information in this case. No. 3. The court declares the law to be that unless it appears from the evidence that the defendant, on or prior to the 24th day of August, 1889, removed from the county of Buchanan to the county of Nodaway, in the state of Missouri, to practice medicine, then in such case the statute makes no provision requiring him to record a certificate, issued to him by the board of health of said state, in the office of the county clerk in said last-named county. Therefore, unless the court sitting as a jury shall find from the evidence, beyond a reasonable doubt, that the defendant did on said 24th day of August, 1889, in said last-named county, without removing from said county of Buchanan, the county of his residence, to said Nodaway county, publicly profess to be a physician, and that he did then and there, in said last-named county, prescribe as a physician for the cure of the disease of the hands of the said Olive Rowley, without having a certificate issued to him by the board of health recorded in the office of the county court of said Buchanan county, then the court will find the defendant not guilty as charged in the information, and it devolves upon the state to prove that the defendant had no such certificate recorded in said county clerk's office, in said Buchanan county, at said time." The court refused No. 1; gave No. 2 as prayed, and modified No. 3 so as to make it read as follows: "No. 3. The court declares the law to be that unless it appears from the evidence that the defendant, on or prior to the 24th day of August, 1889, removed from the county of Buchanan to the county of Nodaway, in the state of Missouri, to practice medicine, in such case the statute makes no provision requiring him to record a certificate, issued to him by the board of health of said state, in the office of the county clerk in said last-named county. Therefore, unless the court sitting as a jury shall find from the evidence, beyond a reasonable doubt, that the defendant did on said 24th day of August, 1889, in said last-named county, without removing from said county of Buchanan, the county of his residence, to said Nodaway county, publicly profess to be a physician, and that he did in said last-named county prescribe as a physician for the cure of the disease of the hands of the said Olive Rowley, without having a certificate issued to him by the board of health, then the court will find the defendant not guilty as charged in the information." Whereupon the court sitting as a jury, after hearing the evidence, instructions allowed and given as aforesaid, and the argument of counsel, found the defendant guilty as charged in the information. In due time motions for new trial and in...