State v. Horn

• Decision Date: 30 December 1966
• Docket Number: No. 1,CA-CR,1
• Citation: 4 Ariz.App. 541,422 P.2d 172
• Parties: STATE of Arizona, Appellee, v. Floyd Francis HORN, Appellant. 48.
• Court: Arizona Court of Appeals

Page 172

422 P.2d 172

4 Ariz.App. 541

STATE of Arizona, Appellee, v. Floyd Francis HORN, Appellant.

No. 1 CA-CR 48.

Court of Appeals of Arizona.

Dec. 30, 1966.

Rehearing Denied March 2, 1967.

Review Denied March 28, 1967.

Darrell F. Smith, Atty. Gen., by John V. Riggs, Asst. Atty. Gen., for appellee.

McGillicuddy, Johnson & Rich, by Chris T. Johnson, Phoenix, for appellant.

J. THOMAS BROOKS, Judge of Superior Court.

Floyd Francis Horn, hereinafter referred to as defendant, was charged by information in the Superior Court of Maricopa County with the crime of practicing medicine without a license, in violation of A.R.S. § 32--1401 and A.R.S. § 32--1455, as amended. The defendant appeals from the judgment of conviction and order denying a new trial.

The facts and circumstances considered most favorably in support of the verdict are as follows:

Several days prior to April 1, 1964, at the request of an inspector for the United States Food and Drug Administration, one Ruth Glover called the defendant on the telephone, in Phoenix, and advised him that she was concerned about her health and feared that she might have cancer. She told the defendant that she had recently undergone surgery for the removal of a tumor from her thyroid gland, and although the doctors had assured her that she did not have cancer, she did not believe them.

The defendant assured Mrs. Glover that he could help her and an appointment was arranged for April 1st in Mrs. Glover's home.

During the meeting of April 1st, defendant advised Mrs. Glover that she was suffering from both cancer of the throat and chest.

He exhibited a box containing twelve bottles of pills and told her that she could be cured with these minerals and that the cost of the treatment would be the sum of $330.00. Mrs. Glover was to call as soon as she was able to obtain the money and that particular interview was terminated.

On April 9, 1964, Mrs. Glover again telephoned the defendant and advised him the she had secured the money and requested that he again come to her home and bring his medicine.

The defendant arrived at Mrs. Glover's home on the evening of April 9th, at which time he examined her neck and told her that she was suffering from skin cancer. He stated that he could cure this particular cancer with his 'number five or number six mineral', together with some vanishing cream.

Mrs. Glover thereupon handed the defendant $330.00 in cash, at which time he advised her that this amount would enable him to cure the cancer on her throat, but that an additional sum of $330.00 would be needed to cure the chest cancer. He then gave Mrs. Glover some pills which she pretended to swallow. At this point, several police officers who had overheard the conversations from an adjoining room appeared and placed the defendant under arrest for practicing medicine without a license.

Tape recordings of defendant's various interviews and telephone conversations with Mrs. Glover were admitted into evidence at the time of the trial. The defendant does not question on appeal the admissibility of this evidence nor is the question of entrapment presented to this Court for consideration. We, therefore, do not consider these issues in this opinion.

The recordings, together with other testimony, revealed that the defendant made numerous statements and representations to Mrs. Glover concerning her physical condition and his ability to alleviate same. He stated that he sold 'Schuessler's twelve minerals' which were tissue builders; that these minerals could control the growth of every cell in the body; that a doctor in Seattle, Washington, had been able to cure hundreds of cases of cancer with mineral pills but that the defendant was able to effect cures in one-third the time.

The defendant further stated that he could empty out any hospital of cancer patients within thirty days; that the 'number five mineral' together with cold cream could dry up and kill a cancer.

The defendant had suggested to Mrs. Glover that she remain on a diet for two weeks, during which time she was to take nothing but prune juice and water. He stated that he planned to place her cancer in a state of dormancy, after which time his mineral pills would build up her body resistance and enable her to combat the disease. He indicated that a medical doctor might charge as much as $7,500.00 whereas he, the defendant, would only require the sum of $330.00. Mrs. Glover, of course, was only pretending to rely upon these representations for the purpose of assisting the law enforcement officers.

The evidence clearly established that defendant was not licensed to practice medicine nor any other branch of the healing arts, although he was in possession of a State and City License permitting him to sell vitamins and health foods.

The first question raised by defendant on appeal, is whether it was prejudicial for the court to admit statements made by him prior to the date of his arrest concerning other people who he had allegedly treated and cured.

This evidence was clearly competent as tending to establish the defendant's motive and common scheme or plan. State v. Hardin, 99 Ariz. 56, 406 P.2d 406 (1965).

The defendant next urges that there was insufficient evidence as a matter of law to sustain a conviction and, in this regard, he contends that he was not shown to have been practicing medicine as a business.

The applicable statutes provide as follows:

A.R.S. § 32--1401, as amended:

(7) 'Practice of Medicine', which shall include the practice of medicine alone, the practice of surgery along, or both, means the diagnosis, treatment or correction of, or the attempt to, or the holding of one-self out as being able to diagnose, treat or correct any and all human diseases, injuries, ailments or infirmities, whether physical or mental, organic or emotional, by any means, methods, devices or instrumentalities, except as the same may be among the acts or persons not affected by this chapter.

A.R.S. 32--1455, as amended, makes the practice of medicine by one not licensed or exempt from the requirement therefor guilty of a felony.

It is apparent that the statutes provide a penalty for any single or isolated act which constitutes the unlicensed practice of medicine. The provisions of A.R.S. § 32--1401 are in the disjunctive and the offense is therefore committed by a person who performs any one or more of the acts prescribed. Continuous or habitual acts of treatment are not essential in order to establish the unlicensed practice of medicine. A single isolated act may constitute the offense. People v. Friedman, 374 Ill. 212, 29 N.E.2d 89 (1940); State v. Lydon, 170 Wash. 354, 16 P.2d 848 (1932); Baldwin v. District of Columbia (Mun.Ct.App.D.C.), 183 A.2d 566, 99 A.L.R.2d 651 (1962).

In Baldwin v. District of Columbia, supra, the court said:

'* * * Practicing medicine or surgery does not mean continued or habitual professional acts but, as the object of a restrictive statute is the protection of the public and as a member of the public is endangered by one act of an unqualified practitioner, so a single act may be practicing * * *

'* * * Each act of treatment constitutes a fresh menace, each repetition a new threat of the abuse which the statute was designed to prevent * * *'

Defendant argues that such an interpretation would mean that one could be found guilty of a felony who merely gave casual advice to a friend or member of his family or who rendered emergency medical assistance. In this regard, we point out that A.R.S. § 32--1421, as amended, specifically exempts persons who furnish emergency medical assistance as well as those who administer domestic family remedies. Further, the evidence clearly established that the facts of the defendant were not merely casual or friendly in nature, but purported to be of a professional character. See Territory of Hawaii v. Takamine, 21 Hawaii 465; 93 A.L.R.2d 129 (1913).

The defendant next urges that the evidence was insufficient to sustain the verdict in that the State failed to present expert testimony to establish that the acts of defendant constituted the practice of medicine.

Generally, there are two distinct classes of cases in which expert testimony is admissible, as is said in 20 Am.Jur. Evidence, Section 776, page 648:

'* * * In one class are those cases in which the conclusions to be drawn by the jury depend on the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subjects in question. In the other class are those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend on professional or scientific knowledge not within the range of ordinary training or intelligence.'

We hold that laymen could have understood the facts as they were presented at the time of trial, together with the meaning of the terminology contained in the applicable statute. Expert testimony was not required.

Defendant has attempted to compare the situation here with that of a civil case involving medical malpractice wherein expert testimony is required to assist in establishing a standard of care with respect to diagnosis and treatment.

This rule, however, is subject to an exception when the alleged act or omission is within the realm of common knowledge which a layman would have no difficulty in recognizing. Revels v. Pohle, 101 Ariz. 208, 418 P.2d 364 (1966).

Defendant next contends that A.R.S. § 32--1401 is unconstitutional as being so vague and indefinite that it violates the due process and equal protection guarantees of the State and Federal constitutions. It is defendant's position that the statute does not define the meaning of the words 'diagnosis' and 'treatment' and that men of ordinary intelligence are therefore...