State v. McAninch
| Citation | 154 N.W. 399,172 Iowa 96 |
| Decision Date | 05 October 1915 |
| Docket Number | 30099 |
| Parties | STATE OF IOWA, Appellee, v. J. E. MCANINCH et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Jasper District Court.--HON. HENRY SILWOLD, Judge.
SEC 2579 of the Code defines one practicing medicine, surgery or obstetrics, and being a physician, to be a person "who shall publicly profess to be a physician, surgeon or obstetrician, and assume the duties, or who shall make a practice of prescribing or of prescribing and furnishing medicine for the sick, or who shall publicly profess to cure or heal." Sec. 2580, Code, is, among other things, that it shall be a misdemeanor for any person to "practice medicine, surgery or obstetrics in the state without having first obtained and filed for record" a prescribed certificate. The indictment at bar was presented on October 16, 1913, and charges that:
"The said J. E. McAninch and C. S. McAninch on or about the 4th day of October, A. D. 1913, and from that date to the finding of this indictment, in the county of Jasper and state of Iowa, did wilfully and unlawfully assume the duties of a physician, and make a practice of treating persons afflicted with disease, and did then and there wilfully and unlawfully publicly profess to treat, cure and heal persons afflicted with disease, by a system of treatment called 'Chiropractic', without first having obtained from the state board of medical examiners of the state of Iowa and recorded in the office of the county recorder of Jasper county, Iowa, a certificate authorizing the said J. E McAninch and C. S. McAninch to practice as such, contrary to and in violation of law."
The defendants interposed a demurrer, which, they claim, asserts that the indictment charges an impossible offense, and is otherwise insufficient under our statutes. They also interposed a plea in bar, claiming that the dismissal of an indictment found earlier than the one at bar operates as a bar to prosecution under the last indictment. On the overruling of demurrer and plea, pleas of not guilty were entered, and a conviction ensued. From the judgment entered on the verdict, defendants appeal.
Affirmed.
Morris & Hartwell and E. J. Salmon, for appellants.
George Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for the State.
Demurrer can present only (1) that the indictment does not substantially conform to the requirements of the Code, and (2) that it pleads that which, if true, constitutes a legal defense or bar to the prosecution (Sec. 5328, Code). It admits of serious doubt, therefore, whether demurrer may be used to urge that the indictment (1) "Improperly joins several offenses in one count"; (2) is duplicitous "in pleading the alleged offenses"; (3) "fails to show or allege facts sufficient to show that this court, or any court, has jurisdiction to issue a warrant herein, or try these defendants for any offense at common law, or under the statutes of the state of Iowa, or at all."
The general allegation of noncompliance is not tenable. The others urge duplicity, and duplicity is not reached by demurrer. State v. Abrahams, 6 Iowa 117; State v. Buck, 59 Iowa 382, 13 N.W. 342; State v. Brown, 135 Iowa 40, 109 N.W. 1011; State v. Von Kutzleben, 136 Iowa 89, at 96; State v. Yates, 145 Iowa 332, 124 N.W. 174.
Passing whether demurrer is the method, it is in serious doubt, at least, whether claims that the indictment improperly joins two offenses and two defendants, plus a general allegation that it fails to comply with the requirements of the Code, present that the offense charged cannot be committed jointly, wherefore, there can be no proof of a joint offense, and hence no conviction of either defendant.
Whether an "alleged error or point (which is) contained in this statement of points" may be considered here, unless amplified by an argument, is not involved. It is certain we need not consider a point that is made only by an argument in extenso; and the only point made on this head under the caption "Errors Relied Upon" is that "the defendants were improperly joined in the indictment". There is no reference to the indictment as a pleading in any "separately numbered propositions or points stated concisely, and without argument or elaboration, together with authorities relied on in support of them, under a separate heading of each error relied on."
But we incline to resolve the doubt whether the point was sufficiently made below in favor of an application in aid of liberty, and to waive the rule as to presentation here--one intended to relieve us of the burden of ascertaining the point in dispute by resort to long arguments--because of the importance of the questions presented, and because the argument for appellant seems to have been prepared by counsel practicing in another jurisdiction.
II. We are clear that it was right to overrule that part of the demurrer which presents that the statutes proceeded under are repugnant to the Bill of Rights, the Constitution of the United States, and the Constitution of the state.
III. It is a fair analysis of the position of appellants that (1) what they are accused of having done jointly cannot be done jointly, and therefore it is impossible to prove what is alleged; (2) proof that either did what is charged would not accomplish the proving of any joint act; and (3) where a joint act is charged, and the proof be but that either or all of the defendants did the act severally, there can be no legal conviction of either or both under the joint indictment.
The ultimate proposition is that upon these premises it is apparent, upon the face of the indictment, that any trial had thereunder must end with a fatal variance between plea and proof.
While isolated sentences in argument and loose words in authorities relied upon convey the idea that the indictment is defective because it charges an impossible offense, they are, instead, merely an argument for the conclusion that this indictment is one under which no effective trial is possible. The consideration of this contention involves, (1) whether a joint commission of the offense charged is impossible; (2) whether two may not be properly charged with the joint commission of it, even though two cannot (physically) jointly fail to procure and file a certificate, and whether, even though the offense charged cannot be committed jointly, it follows that because the charge is joint both must be acquitted, should the evidence show that one alone was guilty, or that both are, independently, guilty.
It is true there are some cases for the proposition that some acts cannot rightly be joined in an indictment. It is equally true that some of these do not hold to the rule unqualifiedly, and, so far from attaching to such joining the consequence that all indicted must be acquitted without reference to what the proof of several guilt is, hold such misjoinder can be obviated and corrected. It may be granted, for the sake of argument, that a few of these first few hold that upon such misjoinder such consequence follows; but we believe these do not voice the weight of authority, and to a certainty do not announce what is now the law.
United States v. Kazinski, F. Cases, No. 15,508, holds, without more, that several may not be joined in an indictment for violating a statute which prohibits defendant to "enlist or enter himself as a soldier in the service of a foreign prince".
Without discussion or the citation of authority, Vaughn v. State, 4 Mo. 530, at 536, declares that two can no more be jointly guilty of exercising the trade or business of an auctioneer without license than be jointly guilty of speaking slanderous words. Let it be said, in passing, that while we once inclined to the opinion that slanderous words could not be jointly spoken, we have receded from that position--and, as will be seen, we are not alone in the position into which our receding puts us.
State v. Lancaster, 36 Ark. 55, applies the rule to a charge of uttering vulgar and profane language and making violent threats. It cites State v. Roulstone, 3 Sneed (Tenn.) 107, which so rules as to the uttering of obscene and vulgar words. We think it will presently appear that the Supreme Court of Tennessee has receded from the principle involved in thus deciding. Both the Lancaster case and the Roulstone case modify the strictness of the position taken with a concession that using different counts is a cure.
Commonwealth v. McChord, 32 Ky. 242, 2 Dana 242, involved an indictment for obstructing a highway preferred against three abutters owning separate parcels of land, and wherein each of the three had extended his fence upon it, each in a different place, but all within the boundary designated in the indictment. The ultimate decision is that a joint indictment against these cannot be maintained. This is done after asserting that the indictment would be good if it had charged each offender severally, and could, in that event, be maintained against all of them; that the omission of words such as "severally" or "separately" is neither fatal nor material; that verbal exactness and the technical strictness of old times are not now required in indictments (a statute rule in Iowa, Code Sec. 5290); that common sense is now the common law in criminal as well as in cases purely civil; that, where the offenses are all of the same kind, admit of the same plea, the like judgment, and are subject to the same punishment in kind, even though in different degrees, one indictment charging the offenders severally may be maintained against all. It will be seen that the case, therefore, enforces...
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