Appeal
from superior court, Moore county; Robinson, Judge.
Harry
P. MacKnight, indicted for practicing medicine without a
license, was acquitted, and the state appeals. Affirmed.
Indictment
for practicing medicine without license. The jury returned
the following special verdict: "That the defendant
advertised in the Free Press, a newspaper published in
Southern Pines, Moore county, North Carolina, before the
finding of the bill of indictment herein, his profession or
business in the following words, to wit: 'Dr. Harry
MacKnight. All acute and chronic diseases successfully
treated without drugs or medicines. Office hours: Nine to
eleven a. m.; two to five p. m.; seven to eight-thirty p. m
Second floor brick building, opposite depot.' That about
the first of the year 1902 the defendant came to Southern
Pines, in Moore county, opened an office, at the door of
which he placed his sign in these words, 'Office of Dr
Harry MacKnight,' and began the treatment of acute and
chronic diseases without drugs or medicines. That the
defendant had numerous patients, and claimed to treat as many
patients as any other physician in Southern Pines. That his
treatment of said patients did not consist in the
administration of drugs or medicines, but in manipulation
kneading, flexing, and rubbing the body of his patients, and
in the application of hot and cold baths, and in prescribing
rules for diet and exercise, and made use of these different
processes for different patients. That the defendant took
supreme charge of the cases of his patients, with a view of
effecting a cure and restoring his patients to sound bodily
health. That the defendant was engaged in the general
practice of osteopathy, and professed to effect the cure of
diseases by the practice of that science. That he also
practiced hypnotism and suggestion under hypnotism, such as
deep breathing, and magnetic healing, and the like, for the
purpose of effecting a cure and restoring his patients to
sound bodily health. That the defendant exhibited a diploma
issued by the Columbia College of Osteopathy, duly
incorporated under the laws of Illinois, conferring upon the
defendant the degree of Doctor of Osteopathy, dated May 13
1900, but the defendant was not licensed to practice medicine
or surgery, or any of the branches thereof, nor to prescribe
for the cure of diseases for fee or reward, as required by
chapter 34 of the Code of North Carolina, and the amendments
thereto. That the defendant charged a fee or reward for his
services in the treatment of his patients. That upon two
occasions he used a small surgeon's knife in opening an
abscess in the mouth of one Shedd, but charged no fee for his
services. That all the foregoing facts took place in Moore
county, North Carolina, prior to the finding of the bill of
indictment, and during the year 1902. If, upon the foregoing
finding of facts, the court adjudges the defendant guilty,
then the jury find him guilty; and, if the court adjudges the
defendant not guilty, the jury returns for its verdict not
guilty." The court being of opinion that the defendant
was not guilty as charged in the bill of indictment, the
jury, in accordance therewith, returned a verdict of not
guilty, and judgment was entered discharging the prisoner.
CLARK
J.
Chapter
117, Laws 1885, amending Code, § 3132, under which this bill
was drawn, reads as follows: "Section 3132. And any
person who shall begin the practice of medicine or surgery in
this state, for fee or reward, after the passage of this act,
without first having obtained license from said board of
examiners, shall not only not be entitled to sue for or
recover, before any court, any medical bill for services
rendered in the practice of medicine or surgery, or any of
the branches thereof, but shall also be guilty of a
misdemeanor, and upon conviction thereof shall be fined not
less than twenty-five dollars nor more than one hundred
dollars, or imprisoned at the discretion of the court for
each and every offence: provided, that this act shall not be
construed to apply to women who pursue the avocation of a
midwife; and provided further, that this act shall not apply
to regularly licensed physicians and surgeons resident in a
neighboring state." This last clause has since been
modified. Laws 1889, c. 181. The constitutionality of this
act was discussed and affirmed State v. Call, 121
N.C. 643, 28 S.E. 517. The simple question, therefore, upon
the facts set out in the special verdict, is whether one who
practices "osteopathy" is indictable if he has not
procured the license required for any one by the above
section before beginning "the practice of medicine or
surgery."
The
special verdict finds that the defendant's
"treatment of his patients did not consist in the
administration of drugs or medicines, but in manipulation
kneading, flexing, and rubbing the body of his patients, and
in the application of hot and cold baths, and in prescribing
rules for diet and exercise; *** that the defendant was
engaged in the general practice of osteopathy, and professed
to effect the cure of diseases by the practice of that
science; that he also practiced hypnotism and suggestion
under hypnotism." It is also found that "upon two
occasions he used a small surgeon's knife in opening an
abscess in the mouth of one Shedd, but charged no fee for his
services." The only surgery was "without fee or
reward," an act of charity, and that was incidental, and
not in the usual course of the practice of osteopathy. It
cannot be said that one "practices medicine and
surgery" when he uses neither drugs, medicine, nor
surgery. Section 3124 requires the "board of medical
examiners" to examine all applicants "to practice
medicine or surgery" in "anatomy, physiology,
surgery, pathology, medical hygiene, chemistry, pharmacy,
materia medica, therapeutics, obstetrics, and the practice of
medicine," almost all of which would be useless
knowledge to exact of an osteopath, who declines to use
medicine, drugs, or surgery, and whose treatment consists
solely in kneading, flexing, and rubbing the body,...
