State v. Miller, Cr. No. 49.
| Decision Date | 18 February 1930 |
| Docket Number | Cr. No. 49. |
| Citation | 59 N.D. 286,229 N.W. 569 |
| Parties | STATE v. MILLER. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In a prosecution for practicing “medicine without a license” where the evidence shows the defendant styled himself “Dr.,” advertised that he would explain “how to prevent disease, how incurable diseases may be cured, will also tell how many other diseases may be cured,” that people came to him for treatment of their ailments, that he diagnosed their cases, charged and collected compensation for such service, and prescribed and furnished medicine therefor, and the defendant claims that such practices, though prohibited by statute, are but the practice of a science which he calls naturopathy and are the practice of the religious tenet, rules, and ceremonies, of the religious organization of which he is a member, it is not error for the court to refuse to permit proof as to what is the science of naturopathy or what are the religious tenets, rules, and ceremonies of the religious organization mentioned. The statute does not permit the practice of such “religious tenets or religious rules or ceremonies as a form of religious worship, devotion, or healing” when the person administering or making use of the same prescribes or administers medicine and assumes the title of or holds himself out to be a physician.
Section 463, Comp. Laws 1913, defining the crime of practicing medicine without a license, does not interfere with religious liberty in making it unlawful without a license to administer drugs or medicine or for the practitioner to hold himself out as a physician, even though said practitioner claims and is prepared to prove he practices the tenets of his religion.
It is immaterial what may be the principles of naturopathy when the practices indulged in are forbidden by statute under the circumstances related.
It is not error to permit witnesses to testify whose names are not indorsed on the information, when it was not known to the state's attorney, at the time of the filing of the information, that such witnesses were material and necessary.
No such conduct of the state's attorney is shown as would justify a reversal.
Evidence is examined, and it is held the same is sufficient to justify the verdict.
Additional Syllabus by Editorial Staff
When one diagnoses disease and prescribes and applies any therapeutic agent as a remedy, he is, in a broad sense, “practicing medicine” within Comp. Laws 1913, § 463, making it an offense to practice medicine without a license, regardless of efficacy of remedy, and in this connection to “prescribe” means more than suggestion or opinion; it means to direct use of a medicine.
Comp. Laws 1913, § 463, making it offense to practice medicine without a license, is aimed at one holding himself out to be or assuming the title of a physician, and in treatment of diseases, terms “doctor” and “physician” are practically synonymous; a “physician” being one who has received degree of doctor of medicine, though terms “doctor” and “surgeon” are not synonymous.
Appeal from District Court, Emmons County; Wm. H. Hutchinson, Judge.
J. H. Miller was convicted of practicing medicine without a license, and he appeals.
Affirmed.
Arthur B. Atkins, of Napoleon, and Wm. Langer, of Bismarck, for appellant.
James Morris, Atty. Gen., and Geo. W. Lynn, State's Atty., of Linton, for the State.
The information charges the defendant with the crime of practicing medicine without a license, as follows: “That at the same time and place the said J. H. Miller did wilfully and unlawfully in the village of Strasburg, said county and state, hold himself out to the public to be a duly qualified doctor and skilled in medicine and the diagnosis and treatment of diseases of human beings, and opened and maintained an office for the practice of medicine in said village and therein examined, diagnosed and prescribed treatments for the palliation, relief and cure of divers and various persons of sundry and various diseases and ailments and from said persons did charge and collect compensation for such services, and in particular from Joseph Wolf, R. R. Dosch and Casper Kraft, and all this without first having applied for and received a license to practice medicine from the State Board of Medical Examiners of the State of North Dakota.”
The statute, section 463, Comp. Laws 1913, says:
* * *”
The jury found the defendant guilty as charged, and he has appealed from the order denying a new trial.
There are twenty-eight specifications of error; sixteen dealing with the admission of testimony, one with permitting a witness to testify whose name was not indorsed on the information, three with failure to dismiss or to direct a verdict for the defendant, six with failure or refusal to give certain instructions, one with misconduct of the state's attorney during the argument, with three subdivisions, and one with insufficiency of the evidence to sustain the verdict.
[6] A résumé of the testimony is necessary to understand the issues raised by the specifications of error. Witness Dosch testified: That the defendant said “he was doctoring”; that he told him he could be found at Lipp's place; that he went there to see him for treatment; that defendant commenced to examine him by opening his clothing at his breast; examined his eyes; felt his pulse; examined his stomach; took some blood from the ear and tested it; told him he was going to give him some medicine to “fix him up”; that the defendant charged him $3 for the examination and $16 for the medicine; that he got the medicine later from the express company; that he was to take some when drinking coffee, and some was to be taken with a spoon before meals and after meals; that he got six bottles of medicine; that “it is just like peppermint”; the defendant sold him an electric machine for which witness paid $15; that he paid by check and gave the check to the defendant.
Mrs. Holzer testified: She called on the defendant at Lipp's place; that the defendant made an examination of her; that he had a machine like the other doctors had; that he put his ears to one part of it and the other portion was on her body; that he felt her pulse, told her that her blood was not right; that she was easily tired and could not sleep well; that he sold her six bottles of medicine and these came by mail; that he charged $3 for the examination, and she paid him for the medicine, in all $21; and that he told her it was medicine.
Witness Kraft testified: That he went to Lipp's house to see the defendant and “took my daughter to him and told him to look and tell me what kind of sickness she had”; that he gave her a thorough examination by taking the “machine and put it in his ears and placed it on her breast”; that he felt her pulse and her head; “gave her a box of medicine for laxative right away and then afterwards he sent the rest by mail-or by express”; defendant charged $3 for examination, and the rest for medicine; “in all it was $13.75.”
Witness Stock testified: That he heard the defendant lecturing on the street and saw him distributing handbills. The handbill introduced reads as follows:
“‘The House We Live in’
In German and English languages Strasburg Theatre
Commencing at 8 o'clock p. m.
Dr. Miller will devote an evening each to lectures on
He will explain how to Prevent Diseases, How Incurable Diseases may be Cured, How to cure Gallstones and Appendicitis without the use of the knife. He will also tell how many other diseases may be cured during the course of his lectures.
Dr. Miller represents the National First Aid Association of America, of Washington, D. C., and is Vice President of the American Natropathic Association of North Dakota.
Witness Lipp testified: That he rented a room in his house to the defendant for eight days at $1.50 per day, and that people were coming to see the defendant, two and three a day.
The defendant admitted he received fees from these patients; he says he did not charge them, but when they asked him what his fee was stated:
“I told them to give what they could or they wanted to-they asked me what the usual fee was and I told them $3.00-most of them gave me $3.00.”
He admitted he used the term “Dr.,” but said he had in mind that people would think he was a doctor of divinity. He was asked:
When asked if he had...
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