State v. Herring

• Decision Date: 17 January 1904
• Citation: 56 A. 670,70 N.J.L. 34
• Parties: STATE v. HERRING.
• Court: New Jersey Supreme Court

56 A. 670

70 N.J.L. 34

STATE

v. HERRING.

Supreme Court of New Jersey.

Jan. 17, 1904.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Monmouth County.

Ernest M. Herring was convicted of unlawfully engaging in the practice of medicine, and brings error. Reversed.

Argued June term, 1903, before the CHIEF JUSTICE, and HENDRICKSON, PITNEY, and DIXON, JJ.

S. A. Patterson, for plaintiff in error.

J. E. Foster, for the State.

DIXON, J. The defendant was tried in the Monmouth sessions on an indictment charging that he unlawfully engaged in the practice of medicine and surgery without a license, "by prescribing, directing, recommending, advising, applying, giving and selling for the use of I. S. T. and others * * * certain drugs, medicines and other agencies and applications for the treatment, cure and relief of certain bodily injuries, infirmities and diseases," contrary to the statute. The proof at the trial was that the defendant was an osteopathic physician, and, as such, treated I. S. T. and others by manipulating certain muscles of their bodies with his hands only; applying his hands to those parts of the bodies supposed to be afflicted by disease or infirmity. On this proof the defendant was convicted, and thereupon prosecutes this writ of error.

The indictment rests upon sections 8 and 10 of "An act to regulate the practice of medicine and surgery to license physicians and surgeons, and to punish persons violating the provisions thereof," approved May 22, 1894 (Gen. St. p. 2086, §§ 34, 36). The eighth section contains the language describing the offense substantially as it is set forth in the indictment. The question now to be considered is whether the defendant, by applying his hands only to the bodies of his patients to relieve their ailments, was applying "any drug, medicine or other agency or application," within the intent of the statute. The phrase "other agency or application" is a very broad one, and, in its general sense, would undoubtedly include the use of the hands. But it is conjoined to the terms "drug" and "medicine," which are much more special; and, under the maxim, "Noscitur a sociis," its interpretation should be such as will confine it to the class in which its special associates stand. State v. Gedicke, 43 N. J. Law, 86; Freeholders of Morris v. Freeman, 44 N. J. Law, 631, 633. Moreover, as a phrase employed to create and define offenses unknown to the common law, it must be strictly construed. In forbidding...