State v. Karsunky

• Decision Date: 25 November 1938
• Docket Number: 27265.
• Parties: STATE v. KARSUNKY.
• Court: Washington Supreme Court

84 P.2d 390

197 Wash. 87

STATE v. KARSUNKY.

No. 27265.

Supreme Court of Washington

November 25, 1938

Department 2.

Alexander Karsunky was convicted of manslaughter and of practicing medicine without a license, and he appeals.

Judgment reversed and cause remanded with directions.

STEINERT C.J., dissenting in part.

Appeal from Superior Court, Clark County; Charles W. Hall, judge.

E. J Hackett, of Tacoma, James O. Blair, of Vancouver, and Arthur C. Bannon, of Seattle, for appellant.

Eugene G. Cushing and R. DeWitt Jones, both of Vancouver, for the State.

MILLARD Justice.

Defendant was charged by information, on two counts as follows, of the crime of homicide growing out of the death of a person resulting from defendant's improper treatment of a disease with which his patient was afflicted and of the misdemeanor of practicing medicine without a license:

'Count I. That he, the said Alexander Karsunky, on or about the 21st day of December, 1937, in the County of Clark, State of Washington, did, then and there, willfully, unlawfully and feloniously and without excuse or justification, kill and cause the death of William Hahn, in this, to-wit, that he the said Alexander Karsunky, on or about the 1st day of December, 1937, in the County of Clark, State of Washington, did, then and there, willfully, unlawfully and feloniously and without excuse or justification, and through culpable negligence, gross ignorance and lack of ordinary knowledge of medicine and surgery, and with utter disregard for the health, safety and life of the said William Hahn, and representing himself to be a duly qualified physician and doctor, did, then and there, prescribe treatment and diet for the said William Hahn, who was then and there afflicted with the disease known as diabetes, by then and there, advising, prescribing and directing the said William Hahn to follow said diet and to refrain and abstain from taking insulin, which diet was injurious and deleterious to the life, health and safety of said William Hahn, and which insulin was necessary to preserve the health, safety and life of said William Hahn, and as the direct and proximate cause and result of said treatment, advice and prescription, the said William Hahn died on the 21st day of December, 1937, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Washington.

'Count II. That he, the said Alexander Karsunky, on or about the 21st day of December, 1937, in the County of Clark, State of Washington, did, then and there, willfully and unlawfully practice and hold himself out as practicing medicine in this, that he, the said Alexander Karsunky, then and there, did, treat and pretend to treat and heal one William Hahn for disease and physical condition, to-wit, by the use of drugs, medical preparations and advice without having at the time of so doing a valid unrevoked certificate issued by the Board of State Medical Examiners of the State of Washington, or by the State Director of Licenses of the State of Washington, licensing the said Alexander Karsunky to practice medicine within the State of Washington, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Washington.'

Trial of the cause to the court, sitting without a jury--defendant waived trial by jury--resulted in conviction of the defendant of the crime of manslaughter on the first count, and on the second count of the misdemeanor, of practicing medicine without a license. On the first count, the defendant was sentenced to confinement in the state penitentiary for a maximum period of twenty years; and on the second count, the defendant was given a suspended sentence of sixty days in the county jail. Defendant appealed.

Counsel for appellant first contend--and cite in support of that position State v. McFadden, 48 Wash. 259, 93 P. 414, 14 L.R.A.,N.S., 1140--that the information fails to state a crime. The authority cited is not apposite. That case is to the effect that a physician may be charged with manslaughter by causing the death of a sick child, by advising a diet which results in its starvation, under a statute which treats all persons concerned in the commission of an offense as principals, although it was the mother of the child who actually withheld the food from the child in the absence of the accused. The information was held insufficient on demurrer, as there was not such a connected chain of facts alleged as showed starvation as the necessary and certain result of the physician's directions.

'The information epitomized says that the child was starved by the withholding of food through appellant's advice; not all food but merely some kinds of food, without specifying what kinds or what quantities were directed or given. Such a statement of facts is not sufficient to show that appellant's directions caused the death of the child.' [Page 416.]

In the case cited the question of sufficiency of the information was raised by demurrer. In the case at bar the appellant pleaded to the information and went to trial without challenging the sufficiency of the information. That he fully understood the nature of the offenses which he was charged to have committed is clear from his defense to the effect that he sold to his patient preparations, which were defined as drugs and medical preparations, and that he could cure diabetes and had medicine which would cure that disease. The language of the information was sufficient to apprise the appellant with reasonable certainty of the nature of the accusation so that he would be enabled to avail himself of his acquittal or conviction as a protection against further prosecutions for the same offense. In view of that fact and the further fact that the sufficiency of the information is questioned for the first time on appeal, the assignment is without merit. State v. Randall, 107 Wash. 695, 182 P. 575, State v. McKenzie, 184 Wash. 32, 49 P.2d 1115, and State v. Taylor, Wash., 81 P.2d 853.

The contention that count two is defective, in that it fails to allege that appellant was a resident of Clark county, is also without merit. Appellant was charged, under Rem.Rev.Stat. § 10018, with the crime of practicing, attempting to practice, or holding himself out as practicing medicine without having at the time of the commission of the offense a license to practice medicine and surgery in this state. Count two definitely alleges that the offense was committed by appellant in Clark county. In all that is material the count is in the language of the statute (Rem.Rev.Stat. § 10018), and that count is not vulnerable to the attack made on it by appellant. State v. Low, 192 Wash. 631, 74 P.2d 458.

Counsel for appellant argue that the evidence is not sufficient to sustain conviction of appellant on either count.

The practicing of medicine includes the advice, whether oral or in the form of a written prescription, of a physician to his patient as to what to do or what the patient should refrain from doing. Diagnosing, prescribing (orally or in writing) and treating ailments are constituent parts of 'practicing medicine.' If one is so engaged, or holds himself out as being so engaged, he is guilty of violating the statute (Rem.Rev.Stat. § 10018) if 'at the time of so doing' he does not have 'a valid, unrevoked certificate' authorizing him to practice medicine and surgery in this state. See People v. T. Wah Hing, 79 Cal.App. 286, 249 P. 229; State v. Ghadiali, 6 W.W.Harr., Del., 308, 175 A. 315; People v. Mash, 235 Ill.App. 314; State v. Hueser, 205 Iowa 132, 215 N.W. 643; State v. Baker, 212 Iowa 571, 235 N.W. 313; Slocum v. Fredonia, 134 Kan. 853, 8 P.2d 332, 82 A.L.R. 1384; and State v. Davis, 194 Mo. 485, 92 S.W. 484, 4 L.R.A.,N.S., 1023, 5 Ann.Cas. 1000.

If the proximate cause of the death of Hahn was the advice and treatment given by appellant to Hahn, unless Hahn's death was justifiable or excusable, appellant is guilty of manslaughter under Rem.Rev.Stat. § 2395. See State v. McFadden, 48 Wash. 259, 93 P. 414, 14 L.R.A.,N.S., 1140, to the effect that a physician may be charged with manslaughter by causing the death of a sick child by advising a diet which results in starvation of the child. See, also, State v. Hazzard, 75 Wash. 5, 134 P. 514, respecting conviction of one assuming to act as a physician who starved her patients.

The evidence, which is summarized as follows, is sufficient (if accepted by a jury as true) to sustain conviction of the appellant of the crime of manslaughter and of the misdemeanor of practicing medicine without a license:

William Hahn, a strong, robust man thirty-three years old, engaged in heavy manual labor, was a resident of Clark county. For a period of three years, with the exception of a few days immediately preceding his death, he was a patient of Dr. Edgar Anderson, of Portland, Oregon. Because of the disease of diabetes mellitus with which he was afflicted, Hahn was required to follow a strict diet which regulated the intake of carbohydrates and he was required to take each day about fifteen units of insulin which he injected by means of a hypodermic needle. Hahn called every two weeks at the office of his physician who subjected his patient to an examination to ascertain whether he was 'free of suger.'

Appellant is a drugless healer, but he does not have a license to practice medicine in this state. He stopped at regular intervals at a hotel in Vancouver and prescribed for persons who called at his room in the hotel. The medicines prescribed by appellant were prepared by some company outside of this state and sold by appellant in the original package to his patients. Appellant was called 'Dr. Karsunky' by those who called...