State v. Mountjoy

• Decision Date: 10 March 1995
• Docket Number: Nos. 70586,s. 70586
• Citation: 257 Kan. 163,891 P.2d 376
• Parties: STATE of Kansas, Appellant, v. Sandra K. MOUNTJOY a/k/a Morningstar, Donna Griffith, and Carolyn R. Zak, Appellees. ; 70587; 70588.
• Court: Kansas Supreme Court

Page 376

891 P.2d 376

257 Kan. 163

STATE of Kansas, Appellant, v. Sandra K. MOUNTJOY a/k/a Morningstar, Donna Griffith, and Carolyn R. Zak, Appellees.

Nos. 70586; 70587; 70588.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. An appellate court has only such jurisdiction as is provided by law.

2. An appeal to this court may be taken by the prosecution as a matter of right after a final judgment in the district court in four situations: (1) from an order dismissing a complaint, information, or indictment; (2) from an order of the district court arresting judgment; (3) upon a question reserved by the prosecution; and (4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime. K.S.A.1994 Supp. 22-3602(b).

3. The purpose of permitting the State to appeal a question reserved is to allow the prosecution to obtain review of an adverse legal ruling on an issue of statewide interest important to the correct and uniform administration of the criminal law which otherwise would not be subject to appellate review.

4. An appeal may be taken by the defendant as a matter of right from any judgment against the defendant. K.S.A.1994 Supp. 22-3602(a). There is no statutory procedure for a defendant to appeal a question of law after an acquittal of the crime charged.

5. We have no statutory authority under a question reserved by the prosecution to answer the defendants' questions regarding whether lay midwifery is illegal under K.S.A. 65-2803 and whether the trial court properly instructed the jury.

6. It is unlawful for any person who is not licensed under the Kansas Healing Arts Act or whose license has been revoked or suspended to engage in the practice of the healing arts as defined in the Act. K.S.A. 65-2803(a).

7. Criminal intent is the intent to do what the law prohibits. If proof of general criminal intent is required, it is not necessary for the State to prove that the accused intended the precise harm or the result that occurred.

8. In addition to general criminal intent, some statutes also require proof of a specific intent. In those criminal statutes, the intent to accomplish the precise act or element of the crime which the law prohibits is necessary.

9. A person may be held guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. K.S.A. 21-3204.

10. The right to practice the healing arts is a privilege granted by legislative authority and not a natural right of individuals. The legislature deemed it necessary as a matter of policy in the interests of public health, safety, and welfare to enact laws covering the granting of that privilege and its subsequent regulation to protect the public against the unprofessional, improper, unauthorized, and unqualified practice of the healing arts. K.S.A. 65-2801.

11. Among all the objects sought to be secured by government, none is more important than the preservation of the public health. It is fundamental that where a statute is designed to protect the public, the language of that statute must be construed in the light of the legislative intent and purpose and is entitled to a broad interpretation so that its public purpose may be fully carried out.

12. The common-law rule which requires the element of criminal intent to hold a person criminally responsible for his or her conduct contains a well-recognized exception for public welfare offenses. The purpose of K.S.A. 65-2803 is to protect the public from the unauthorized practice of the healing arts. The unauthorized practice of the healing arts is an absolute liability offense and does not require the element of criminal intent.

Stephen M. Howe, Asst. Dist. Atty., argued the cause, and Christina M. Dunn, Asst. Dist. Atty., Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellant.

James R. Hobbs, of Wyrsch Atwell Mirakian Lee & Hobbs, P.C., Kansas City, MO, argued the cause, and Marilyn B. Keller, of the same firm, was with him on the brief for appellees.

LOCKETT, Justice:

Defendants were charged with practicing the healing arts without a license under K.S.A. 65-2803, a class B misdemeanor. Following a jury trial, all three defendants were found not guilty. The State, pursuant to K.S.A.1994 Supp. 22-3602(b)(3), appeals on a question reserved by the prosecution and questions whether the trial court erred by instructing the jury that criminal intent was a required element of the crime of practicing the healing arts without a license.

The facts are not disputed nor an issue in this case. Defendants Sandra Mountjoy a/k/a Morningstar, Donna Griffith, and Carolyn Zak were midwives involved in the breech delivery of a stillborn baby in January 1993 at a home in Edgerton, Kansas. Before the delivery of the baby, defendant Morningstar had entered into a written agreement to perform midwifery services for a sum of money.

Prior to closing arguments the trial judge proposed to instruct the jury:

"In order for the defendant to be guilty of the crime charged, the State must prove that her conduct was intentional. Intentional means willful and purposeful and not accidental.

"Intent or lack of intent is to be determined or inferred from all of the evidence in the case."

The State objected to the instruction, arguing that a violation of K.S.A. 65-2803 did not require proof of intent. Counsel for the State informed the judge that it wanted to "reserve that question."

Based on the same reasoning, the State objected to three other instructions. It objected to the instruction requiring proof that the defendants "willfully" engaged in the practice of the healing arts and defining "willfully" as "an act done voluntarily and intentionally with the specific intent to do something the law forbids, and not by mistake or accident." The prosecution also objected to a third instruction which required the State to prove that the defendants were not acting in response to an emergency and a fourth instruction stating that the jury should consider the defendants' claims that they reasonably believed that their conduct did not constitute an offense. The prosecution did not, however, ask to reserve these questions for appeal at the time it objected.

Jurisdiction

An appellate court has only such jurisdiction as is provided by law. State v. Moses, 227 Kan. 400, Syl. p 7, 607 P.2d 477 (1980). An appeal to this court may be taken by the prosecution as a matter of right after a final judgment in the district court in four situations: (1) from an order dismissing a complaint, information, or indictment; (2) from an order of the district court arresting judgment; (3) upon a question reserved by the prosecution; and (4) upon an order granting a new trial in any case involving a class A or B felony. K.S.A.1994 Supp. 22-3602(b). See State v. Puckett, 227 Kan. 911, Syl. p 1, 610 P.2d 637 (1980).

The purpose of permitting the State to appeal a question reserved is to allow prosecution to obtain review of an adverse legal ruling on an issue of statewide interest important to the correct and uniform administration of the criminal law which otherwise would not be subject to appellate review. State v. Ruff, 252 Kan. 625, 629, 847 P.2d 1258 (1993). No formal procedural steps are required by K.S.A.1994 Supp. 22-3602(b) to appeal on a question reserved. All that is necessary for the State to do to reserve a question for presentation on appeal to the Supreme Court is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken, laying the same foundation for appeal that a defendant is required to lay. City of Overland Park v. Cunningham, 253 Kan. 765, 766, 861 P.2d 1316 (1993).

The State's notice of appeal provides: "Notice is hereby given that the State of Kansas, plaintiff, appeals from a question reserved on October 4, 1993, through October 8, 1993, to the Supreme Court of the State of Kansas, pursuant to K.S.A. 22-3602(b)(3)."

The docketing statement filed by the State expanded its original question reserved to four questions: (1) What is the proper scope of criminal liability under K.S.A. 65-2803 and what are the proper instructions that should be given? (2) Did the legislature intend this statute to be a strict liability, general intent, or specific intent crime? (3) Were the trial court instructions on the emergency and mistake of law defenses correct? and (4) Should the trial court have instructed on whether ignorance of the statute is a defense?

Counsel for Mountjoy filed an answer to the State's docketing statement proposing that the question reserved by the prosecution be further expanded: (1) Is lay midwifery illegal under K.S.A. 65-2803? (2) Because "disease" is not defined in the Kansas Healing Arts Act, K.S.A. 65-2801 et seq., must the person charged have the specific intent to violate the Act? (3) Did the court properly instruct the jury with regard to the emergency defense where the defendant is clearly licensed as a health care provider as defined in K.S.A. 65-2891? and (4) Did the court properly refuse to instruct the jury with regard to ignorance of the law, specifically where the term 'disease' is not defined by statute?

To support their claim that the question reserved by the prosecution should be expanded, defendants' counsel argues that the Kansas Healing Arts Act provides insufficient notice that the practice of midwifery is illegal, contrasting K.S.A. 65-2803 with Missouri statutes which expressly proscribe the practice of midwifery, and asserts that the statute is unconstitutionally vague. Defendants' counsel further suggests that this court should determine whether the trial court properly instructed...