State v. Jones

• Decision Date: 27 July 1942
• Parties: State of Missouri, Respondent, v. G. W. Jones, Appellant
• Court: Missouri Court of Appeals

164 S.W.2d 85

237 Mo.App. 714

State of Missouri, Respondent, v. G. W. Jones, Appellant

Court of Appeals of Missouri, Springfield District

July 27, 1942

Rehearing Denied August 24, 1942.

Appeal from the Circuit Court of Greene County, Division No. Two Hon. Warren L. White, Judge.

Affirmed.

O J. Page, Melvin A. Rogers and Milton Kirby for appellant.

(1) To permit a person to practice medicine and surgery, it is necessary to obtain a license to do so as provided in Section 9111, R. S. Mo. 1929. (2) The practice of medicine and treatment of the sick without a license, the procedure to prosecute violations thereof, and the penalty to be assessed are governed by Section 9118, R. S. Mo. 1929. (3) The office of the prosecuting attorney is created by statutes, and the powers and duties of said office may be repealed, extended, diminished and is entirely within the authority of the Legislature. (4) The prosecuting attorney has the power to file an information under the common law, where a crime has been committed that violates the common law, unless a statute has been interposed by the Legislature which abrogates or modifies the common law relating thereto. (5) The Legislature has created the offense of practicing medicine and surgery in the State of Missouri without having first secured a license from the State Board of Health to do so as provided in Sections 9881 and 9988, R. S. Mo., 1939, and these sections create the crime, provide the penalty, and make mandatory the procedure to be pursued precedent to the bringing of an indictment of the grand jury or an information by the prosecuting attorney. The procedure provided in Section 9988 is exclusive and mandatory, has never been repealed, repeals any conflicting statute, and is in full force and effect. (6) An indictment or information must set up the charge with sufficient certainty to advise the accused of the offense charged, so as to enable him to prepare his defense. State v. Thothos, 126 S.W. 797, 147 Mo.App. 586; State v. Viviano, 206 S.W. 235; State v. Asher, 216 S.W. 1013. (7) It is the established rule in the State of Missouri that the instruction cannot be broader than the pleading or the information charging the crime. Trusty, Construction and Review of Instructions, p. 33 (and cases cited thereunder). (8) Evidence tending to prove a felony cannot be introduced in the trial under an information charging a misdemeanor after timely objections by the defendant have been made, and the evidence cannot be broader than the allegations of the information unless timely amendment is made by the State. Statute of Jeofails, sec. 3508, R. S. Mo. 1929.

William R. Collison for respondent.

(1) The information filed herein charges a violation of the statute, and sufficiently apprises defendant of the offense charged. Sec. 9988, R. S. Mo. 1939. (2) Defendant could not have possibly been prejudiced by the giving of Instruction "B"; the fact that defendant was a chiropractor was in evidence, and the court very properly gave this instruction. (3) The evidence which the defendant challenges was competent and material for the purpose of proving that a surgical instrument had been used upon the prosecuting witness; therefore, such evidence was admissible even though it might have tended to prove that the defendant was guilty of another offense, namely, abortion. 1 Wharton's Criminal Evidence (11 Ed.), pp. 486, 506 and 587.

Fulbright, J. Blair, P. J., and Smith, J., concur.

OPINION

FULBRIGHT

The defendant was charged by information under Section 9988, R. S. Mo., 1939, in the Circuit Court of Greene County, with having practiced medicine and surgery upon the person of Mrs. I. U. Gordon, without a license from the State Board of Health. Upon a trial to a jury he was convicted and his punishment assessed at a fine of $ 500 and twelve months in the county jail. From this judgment he duly appeals.

It was admitted that the defendant was a licensed practitioner as a Chiropractor by the State Board of Chiropractors. To sustain the charge the State made positive proof that the defendant had prescribed medicine, both pills (which were unidentified as to their nature), and a liquid, identified as extract of urgot, in the treatment of Mrs. Gordon, and that he used a surgical instrument upon her person. An examination by another doctor showed the physical condition of Mrs. Gordon after the treatment and use of the surgical instrument by defendant. It further showed that upon discovery of the fact that his patient had gone to another doctor defendant offered her $ 1,000 for a release and return of the medicine he had prescribed.

The evidence on the part of defendant is in sharp conflict with that of the State, especially as to the prescription or administration of medicine and the use of surgical instruments. His testimony, with some corroboration, tends to show that he had no surgical instruments; that he did not operate on, treat or prescribe medicine for Mrs. I. U. Gordon or any other person at any time; that he did not offer $ 1,000 for a release and return of the medicine prescribed. But, on the contrary, testified that Mrs. Gordon and her husband both demanded of him, under threat, that if he did not make things satisfactory she would appear before the Grand Jury and have him arrested.

It is insisted that the information is defective in that it "failed to inform the defendant what surgical instrument or instruments were used in performing the operation and what medicine or medicines were prescribed to enable the defendant to properly prepare for his defense." The information, omitting caption and signature, follows:

"F. Hiram McLaughlin, Prosecuting Attorney within and for the County of Greene, in the State of Missouri, under his oath of office informs the Court that G. W. Jones, late of the County and State aforesaid, on the 2nd day of October, A. D., 1939, at the County of Greene and State of Missouri, not being then and there a registered physician, and being without a license from the State Board of Health of the State of Missouri authorizing him, the said G. W. Jones, to practice medicine or surgery in the State of Missouri, did then and there willfully, unlawfully and wrongfully practice medicine and surgery, and did attempt to treat the sick and persons afflicted with bodily infirmities, and in particular did attempt to treat Mrs. I. U. Gordon at the time and place aforesaid, the said Mrs. I. U. Gordon being then and there sick and afflicted with bodily infirmities, by the prescription, dispensation and administration of medicine, and by the use of surgical instruments and operations.

"Contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

The provisions of Section 9988, R. S. Missouri, 1939 (Section 9988, Mo. R. S. A.), applicable to this case are as follows:

"Any person practicing medicine or surgery in this State, and any person attempting to treat the sick or others afflicted with bodily or mental infirmities . . . without a license from the State Board of Health . . . shall be deemed guilty of a misdemeanor, and punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for a period of not less than thirty days nor more than one year, or by both such fine and imprisonment for each and every offense; and treating each patient shall be regarded as a separate offense. Upon receiving information that any provision of this section has been or is being violated the secretary of the State Board of Health shall investigate the matter and upon probable cause appearing, shall, under the direction of the board, file a complaint with the prosecuting or circuit attorney in the county or city where the alleged offense occurred. . .."

Comparing the information with the statute it will be observed that the former follows substantially the phraseology of the latter in charging the crime. "This is sufficient to constitute a valid charge where, as here, the statute describes the entire offense by setting out the facts constituting it." [State v. Ferris, 16 S.W.2d 96; State v. Stark, 148 S.W.2d 82.] This having been done, it was unnecessary, in informing the defendant of the nature of the charge against him, to name or describe the kind of surgical instrument or instruments used, or the kind of medicine or medicines prescribed, to enable the defendant to properly prepare his defense. The same nicety is not required in drawing information charging misdemeanors as is required in charging common-law felonies. [State v. Newman, 152 Mo.App. 144.] "The rule of the common law was that charges of crime should be certain to every intent without any intendment to the contrary. This is no longer the rule in this jurisdiction, especially in regard to statutory offenses. Allegations of certainty to a common intent or reasonable certainty are, in such cases, all that are required. By this is meant such particularity in the allegations that the identity of the offense may be determined from the face of the charge, that the accused may be enabled to know what he has to meet that he may prepare his defense and authorize a conviction or an acquittal to be pleaded in bar to another prosecution for the same offense. . . ." [State v. Ferris, supra; State v. Maher, 124 S.W.2d 679, l. c. 683, 232 Mo.App. 998.] The information in the case at bar meets the necessary requirements.

Defendant further insists that the motion to quash the information should have been sustained for the reason "that the prosecuting attorney violated Section 9118, R. S. Mo., 1929 (now Section 9988, R. S. Mo., 1939), by making the complaint of Mrs. I. U. Gordon and her husband, I. U. Gordon,...