State v. Kendig

• Decision Date: 05 February 1907
• Citation: State v. Kendig, 133 Iowa 164, 110 N.W. 463 (Iowa 1907)
• Parties: STATE OF IOWA, Appellee, v. A. J. KENDIG, Appellant
• Court: Iowa Supreme Court

110 N.W. 463

133 Iowa 164

STATE OF IOWA, Appellee, v. A. J. KENDIG, Appellant

Supreme Court of Iowa, Des Moines

February 5, 1907

Appeal from Madison District Court.--HON. EDMUND NICHOLS, Judge.

DEFENDANT was indicted, tried and convicted of the crime of practicing medicine without a license, and appeals to this court.-- Affirmed.

Affirmed.

Robbins & Wilkie, for appellant.

Chas W. Mullan, Attorney-General; Lawrence De Graff, Assistant Attorney-General, and W. S. Cooper, County Attorney, for the State.

OPINION

DEEMER, J.

The charging part of the indictment reads as follows: "The said A. J. Kending on the first day of September, A. D. 1903 and from the said first day of September, A. D. 1903, until the time of the finding of this indictment, did in the county of Madison and State of Iowa falsely, wrongfully, and unlawfully assume the duties of a physician, and make a practice of prescribing and furnishing medicine for the sick, and did wrongfully, falsely, and unlawfully publicly profess to cure and heal, without having first obtained from the board of medical examiners of the State of Iowa and filed for record, a certificate conferring upon him the right to practice, contrary to the statutes in such cases made and provided." It was found under sections 2579 and 2580 of the Code, which read as follows:

Sec. 2579. Who deemed practitioner. Any person shall be held as practicing medicine, . . . or be held a physician within the meaning of this chapter, who shall publicly profess to be a physician, . . . and assume the duties or shall make a practice of prescribing and furnishing medicine for the sick, or who shall publicly profess to cure or heal; but it shall not be construed to prohibit students of medicine . . . who have had not less than two courses of lectures in a medical school . . . from prescribing under the supervision of preceptors, or gratuitous services in case of emergency; nor to prevent the advertising, selling or prescribing natural mineral waters flowing from wells or springs, . . . nor to physicians or midwives who have obtained from the board of examiners a certificate permitting them to practice medicine or obstetrics, without a diploma, . . . or examination by the board; nor to physicians as defined herein, who have been in practice in the State for five consecutive years, . . . nor to filling prescriptions by a registered pharmacist nor to the advertising and sale of patent or proprietary medicines.

Sec. 2580. Penalties. Any person who shall . . . practice medicine, surgery or obstetrics . . . without having first obtained and filed for record the certificate herein required, and who is not embraced in any of the exceptions contained in the chapter, . . . is guilty of a misdemeanor, . . . and shall be fined. . . . etc.

The indictment is challenged upon several grounds, and first that it is not sufficiently certain as to the person charged, or as to the offense intended to be charged, in that the act or omission charged is not set forth with sufficient particularity. It is said that the indictment does not give the slightest information as to the time, place, or circumstances of the offense, nor of the evidence defendant would be required to produce to establish his defense. In this connection it is to be noticed that the offense is purely statutory, and that the act creating it particularly defines the inhibited acts and prescribes the punishment therefor. In such cases the general rule is that an indictment which charges the crime in the language of the statute without more is sufficient. To do more is to set out the evidence whereby the crime is to be established. State v. Blair, 92 Iowa 28, 60 N.W. 486; State v. Curran, 51 Iowa 112, 49 N.W. 1006; State v. Wilhite, 132 Iowa 226, 109 N.W. 730. The general rule as to statutory offenses is that, if the statute so far individuates the crime, that the offender has proper notice from the terms used of the particular offense intended to be covered, it is sufficient to charge it in the language of the statute. State v. Johnson, 114 Iowa 430, 87 N.W. 279; State v. Beebe, 115 Iowa 128, 88 N.W. 358; State v. Bauguess, 106 Iowa 107, 76 N.W. 508; State v. Dankwardt, 107 Iowa 704, 77 N.W. 495. In the present case the statutory definition of the crime is complete, and, as the indictment charges the defendant's offense in the language of the statute, it is sufficient.

Again it is said that the indictment does not charge the defendant with prescribing medicine for, or practicing upon, human beings, as distinguished from furnishing medicine for domestic animals. This objection is purely hypercritical and without merit. According to the common understanding, as well as in law, there is a distinction between the practice of medicine and the healing of the sick and the treatment of diseased animals. See chapter 14a of the Code Supplement.

Further it is argued that the indictment is insufficient in that it does not negative the exceptions contained in sections 2579 and 2580 of the Code. The general rule as to exceptions, provisos, and the like is that where the exception or proviso forms a portion of the description of the offense so that the ingredients thereof cannot be accurately and definitely stated if the exception is omitted, then it is necessary to negative the exception or proviso. But, where the exception is separable from the description and is not an ingredient thereof, it need not be noticed in the accusation; for it is a matter of defense. Hale v. State, 58 Ohio St. 676 (51 N.E. 154); U. S. v. Cook, 84 U.S. 168, 17 Wall. 168 (21 L.Ed. 538); State v. Powers, 25 Conn. 48. The rule as sometimes stated is that, if the exception is found in the enacting clause, it must be negatived, but if found in the statute after general words of prohibition then it need not be. State v. Van Vliet, 92 Iowa 476, 61 N.W. 241; State v. Beneke, 9 Iowa 203; Russell v. State, 50 Ind. 174; Commonwealth v. Hart, 11 Cush. 130; Bell v. State, 104 Ala. 79 (15 So. 557); State v. Williams, 20 Iowa 98. While this is not perhaps an entirely accurate statement it is sufficient for present purposes. The thought we wish to express is that the proviso in the statutes now under consideration withdraws certain cases or persons from the operation of the general prohibition and in such cases the proviso need not be negatived. State v. Curley, 33 Iowa 359; State v. Stapp, 29 Iowa 551. In Ohio where the same general rule prevails as here an indictment, under statutes much like sections 2579 and 2580 of the Code, charging the offense without negativing the exceptions was held sufficient. See Hale v. State, 58 Ohio St. 676 (51 N.E. 154). We adopt the reasoning of that case and in so doing must hold the...