State v. Reisman

• Decision Date: 06 April 1931
• Citation: 37 S.W.2d 675,225 Mo.App. 637
• Parties: STATE OF MISSOURI, APPELLANT, v. OTTO FRANKLIN REISMAN, RESPONDENT
• Court: Kansas Court of Appeals

37 S.W.2d 675

225 Mo.App. 637

STATE OF MISSOURI, APPELLANT, v. OTTO FRANKLIN REISMAN, RESPONDENT

Court of Appeals of Missouri, Kansas City

April 6, 1931

Appeal from the Circuit Court of Jackson County.--Hon. Ben Terte Judge.

Appeal dismissed.

Stratton Shartel, Attorney-General, A. B. Loran, Assistant Attorney-General, and James R. Page, Prosecuting Attorney for appellant.

Brennan & Fraker and J. M. Johnson for respondent.

BOYER C. Campbell, C., concurs. Trimble, P. J., absent.

OPINION

BOYER C.

Prosecution for unlawful practice of medicine. By information of an assistant prosecuting attorney of Jackson county, Missouri it was charged that defendant in said county on September 8, 1929, "did wilfully and unlawfully practice medicine by treating and prescribing medicine for one Mr. Hickman, without having first obtained a license from the State Board of Health to practice medicine within the State of Missouri." Defendant filed a duly verified plea in abatement in which it is stated that the prosecution of said alleged offense should be abated for the following reasons:

"1. Because the defendant is a bona-fide graduate of the Des Moines Still College of Osteopathy, located in Des Moines, Iowa, which said college of osteopathy is a legally chartered school of osteopathy in the State of Iowa. Defendant having received his diploma from said institution on the 27th day of May, 1920, and having been duly and regularly received by the Board of Osteopathic Examination and Registration of Missouri on the 3rd day of June, 1920, and having in all things complied with the requirements of chapter 79 of the Revised Statutes of Missouri for the year 1919, and all amendments thereto providing for the licensing of Osteopathic Physicians; said Board of Osteopathic Examination and Registration of Missouri having on said 3rd day of June, 1920, issued to him a certificate or license to so practice his profession in the State of Missouri and having on the 25th day of July, 1921, duly and regularly registered his said certior license to so practice osteopathy in the office of the clerk of the county court of Jackson county, Missouri, as required by law; said certificate or license being recorded in the record of Osteopaths, Volume One, at page 180, and he the said defendant being now and at all times mentioned in the information filed herein having been a duly qualified, licensed and registered Osteopathic physician and entitled to practice his profession in Jackson county, Missouri.

"2. Because the defendant in treating and prescribing medicine for Mr. Hickman, as alleged in the information herein, was following the system, method, or science of treating the disease he was then treating; which said system, method or science of treatment is commonly known as osteopathy and is the method or system of treatment which is taught and practiced by the American School of Osteopathy of Kirksville, Missouri; that the said system, method or science of treating the disease the defendant was treating at the time of the violation of the statute alleged in the information herein, known as osteopathy, and as taught and practiced by the American School of Osteopathy at Kirksville, Missouri, specifically teaches the prescribing and use of the drugs prescribed by the defendant at the time mentioned in said information for the treatment of the disease defendant was then treating and for which said drugs were prescribed and used and because said the Des Moines Still College of Osteopathy at which plaintiff was educated, as aforesaid, and the American School of Osteopathy at Kirksville, Missouri, teaches the treatment and prescribing of medicine, the use of the drugs and medicines so prescribed by the defendant at the time mentioned in said information and that in so prescribing for and treating the said Mr. Hickman he was following the method, system or science in treating the disease then being treated by him which is known as osteopathy, and as then and now taught by the American School of Osteopathy at Kirksville, Missouri, and because the practice of osteopathy in Missouri has always, and for more than thirty years last past called for the use and prescribing of certain drugs and medicines for certain diseases, including the drugs prescribed by the defendant for the treatment of the said Mr. Hickman at the time alleged in said information and because the use of drugs and medicines for certain diseases and the use of the drugs and medicines so prescribed by the defendant in treating the said Mr. Hickman as alleged in the information, was the latest and best known method of treating the disease then being treated as taught and practiced by osteopathy, generally, in the State of Missouri, and as taught and practiced by the American School of Osteopathy, at Kirksville, Missouri, for more than thirty years last past and because such treatment and the prescribing of such medicine is not the practice of medicine as defined in article one of chapter 65, of the Revised Statutes of Missouri, for the year 1919, and therefore no offense under such article and chapter of the Revised Statutes of Missouri, has been committed and because under chapter 79 of the Revised Statutes of Missouri, for the year 1919, and amendments thereto, the defendant had the right to prescribe and use the drugs and treatment used by him in treating said Mr. Hickman at the time mentioned in said information."

The State filed a demurrer to the plea in abatement the substance of which is that the facts set out in paragraphs 1 and 2 of the plea in abatement constitute no defense in the case.

It appears that the plea in abatement and the demurrer were submitted to the court without hearing evidence upon the plea in abatement and without any proof other than the affidavit thereto. The court overruled the demurrer and sustained the plea in abatement according to the recital of the record furnished. This is all the information offered as to the order or judgment of the court. Thereafter in due time the State filed a motion for new trial in which it moved the court to set aside the "judgment" in the case and grant a new trial because "(1) the court erred in overruling the State's demurrer to the defendant's plea in abatement. (2) The court erred in sustaining the defendant's plea in abatement in this, namely:" Then follow several paragraphs in all of which it is alleged in substance that the matters set forth in the plea in abatement are not material or relevant to the issues in this case. And it is further alleged in said motion that the demurrer did not admit the truth of the allegations of the plea in abatement because such allegations were immaterial and irrelevant. The motion for new trial was overruled and upon timely application and affidavit filed in behalf of the State the trial court granted an appeal to this court.

The attorney-general and an assistant attorney-general join the prosecuting attorney in a brief presenting numerous points and authorities upon which consideration is sought in this appeal, and from which may be gained, no doubt, much of value and learning pertinent to the historical development and the effect of the present statutes relative to the practice of medicine and the practice of osteopathy, the alleged unlawful encroachment or overlapping in the practice of one science or system on that of the other, and various other germane topics giving rise to the casus belli heretofore existing and still persisting between the allopaths and the osteopaths.

We would be inclined to aid, if we could, in a solution of legal questions which seem to vex the interests of the two schools, but have arrived at the conclusion that we are precluded from a review of the questions sought to be presented because of the lack of jurisdiction of this court to entertain the appeal. That which has been often said about the non-existence of the right of appeal at common law and that no appeal is allowed in any case unless expressly provided by statute, applies with peculiar fitness to an appeal by the State in a criminal prosecution. Unless we can find that such right is specifically granted to the State no appeal is permissible.

Appellant contends that section 4099, Revised Statutes 1919, as amended (Laws 1925, page 199), confers such right under the facts and circumstances in this case. Section 4098, Revised Statutes 1919,...