State v. Hathaway

• Decision Date: 12 October 1891
• Citation: 17 S.W. 299,106 Mo. 236
• Parties: STATE v. HATHAWAY.
• Court: Missouri Supreme Court

17 S.W. 299

106 Mo. 236

STATE v. HATHAWAY.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

PHYSICIANS — PRACTICING WITHOUT LICENSE — INDICTMENT.

An indictment charging that defendant "did unlawfully, by being a practitioner and doctor of medicine and surgery, and engaged in said business, * * * without first having filed for record" a certificate from the state board of health, is fatally defective, as there is no affirmative allegation that defendant unlawfully and willfully practiced medicine without having his certificate from the board of health recorded.

Appeal from Buchanan criminal court; SILAS WOODSON, Judge.

J. N. Hathaway was indicted for practicing medicine without having his certificate from the board of health recorded. Defendant was convicted, and appeals. Reversed.

C. M. Napton and H. S. Kelley, for appellant. The Attorney General and W. E. Sherwood, for the State.

GANTT, P. J.

This cause was certified to this court for determination by the Kansas City court of appeals, for the reason that in the decision thereof a constitutional question is involved. The defendant was indicted by the grand jury of Buchanan county at the June term, 1889. The indictment is as follows: "The grand jurors of the state of Missouri, within and for the body of the county of Buchanan aforesaid, being duly impaneled and sworn, upon their oaths do present that J. N. Hathaway, on the 1st day of July, 1889, at the county of Buchanan and state aforesaid, did then and there unlawfully, by being a practitioner and doctor of medicine and surgery, and engaged in said business and profession, and by publicly professing to be a physician and surgeon aforesaid, and to prescribe for the sick for compensation, and by appending to his name the letters `M. D.,' and was not at the time aforesaid a student prescribing under the supervision of a preceptor, or engaged at the time in rendering gratuitous services in cases of emergency, or professing so to do, and was not at the time aforesaid a commissioned surgeon in the United States army, navy, and marine hospital service, and was not a physician and surgeon as aforesaid, nor a practicing physician and surgeon as aforesaid, in this state, for five years next before the 2d day of April, 1883, nor for four years next before the said 2d day of April, 1883, without first having filed for record in the office of the county clerk of said county, in the book kept in the office of the clerk of the county court of said county for that purpose, a certificate from the state board of health authorizing the said J. N. Hathaway to so practice medicine and surgery, or either, as aforesaid, in said county, the county in which the said J. N. Hathaway resides, and did reside during the time aforesaid, and pursues said...