State v. Rolph
| Decision Date | 17 May 1918 |
| Docket Number | 20,776 |
| Citation | 167 N.W. 553,140 Minn. 190 |
| Parties | STATE v. B. ELIZABETH ROLPH |
| Court | Minnesota Supreme Court |
Defendant was indicted by the grand jury charged with the crime of practicing medicine without a license, tried in the district court for Yellow Medicine county before Daly, J who when the state rested denied defendant's motion for a directed verdict. At the opening of the trial defendant objected to the introduction of any testimony on the ground that the indictment did not state facts sufficient to constitute a public offense or the violation of any law of the state. The objection was overruled. The jury returned a verdict of guilty. From an order denying her motion for a new trial, defendant appealed. Affirmed.
Physician and surgeon -- license to practice -- what constitutes practice.
The act of a person who styles himself a doctor, in receiving a patient who has applied to him for medical attention, and examining such person and diagnosing his ailment or disease and recommending an operation as treatment therefor, is practicing medicine within the meaning of our statute prohibiting the practice thereof without license, though he prescribes no drug and administers no specific treatment to the patient.
J. M. Freeman and J. L. Lauermann, for appellant.
In Ohio the practice of osteopathy was held not to be within the purview of a statute almost identical to the Minnesota statute. Eastman v. State, 4 Ohio N.P. 163, 4 Ohio Dec. 296; State v. Liffring, 61 Ohio St. 39, 55 N.E. 168, 46 L.R.A. 334. In Arkansas a similar decision was rendered under a like statute. State v. Gallagher, 101 Ark. 593, 143 S.W. 98, 38 L.R.A. (N.S.) 328. See State v. Biggs, 133 N.C. 729, 46 S.E. 401, 64 L.R.A. 139. In every case examination of the patient and diagnosing of his physical ailments were present, but it was not contended they constituted the practice of medicine. If the examination of the patient, the diagnosing of his ailment and the manipulation of his body together do not constitute practicing medicine, it surely cannot be said that the first two constitute that offense.
Lyndon A. Smith, Attorney General, James E. Markham, Assistant Attorney General, and H. P. Bengtson, County Attorney, for the state.
Section 4971, G.S. 1913, provides as a condition to the issue of a license to practice medicine that the applicant shall pass a satisfactory examination in specified subjects, the diagnosis and treatment of medical and surgical diseases, and such other branches as may be prescribed by the board of examiners. These requirements are indicative of the meaning of the expression "practice medicine." Generally speaking, any person has a right to pursue any lawful calling, but in respect to certain occupations, not in themselves unlawful, this right is necessarily subject to legislative restrictions from considerations of public policy. In medicine, as in law, so injurious are the consequences likely to result from a lack of special qualification in the practitioner, that the power of the legislature to prescribe such reasonable conditions as are calculated to exclude those who are unfitted to discharge professional duties, cannot be doubted. State v. State M.E. Board, 32 Minn. 324, 20 N.W. 238. The words "practice of medicine" are used in the broad and popular sense in which they are generally understood. Stewart v. Raab, 55 Minn. 20, 56 N.W. 256. See Underwood v. Scott, 43 Kan. 714. Under Laws 1883, p. 167, c. 125, the gist of the offense is that an unlicensed person has practiced medicine, and the fact that the accused has for a fee prescribed or recommended for the use of another a drug or medicine or other agency for the treatment of disease is one kind of evidence of guilt, and not the exclusive substance of the offense. State v. Oredson, 96 Minn. 509, 105 N.W. 188. Many physicians of the highest standing in their profession devote their skill and attainments solely to the diagnosis of diseased conditions and never perform an operation or prescribe an ounce of medicine. Yet, if appellant's contention be sustained, the post of diagnostician in our great hospitals might be held by an uneducated person possessing no knowledge of medicine or surgery.
Defendant was indicted by the grand jury of Yellow Medicine county and thereby charged with the crime of practicing medicine without a license in violation of section 4981, G.S. 1913. On a trial of the issues presented by her plea of not guilty she was convicted and thereafter appealed from an order denying a new trial.
The statute on which the prosecution is founded declares that any person who shall practice medicine in this state without first obtaining a license therefor shall be guilty of a misdemeanor and punished in the manner and to the extent thereby prescribed. The statute further provides that a person shall be treated as practicing medicine within the meaning thereof who appends to his name the letters, M.D. or M.B., or for a fee prescribes or recommends for use by any person any drug or medicine or other agency for the relief or treatment of bodily injury, infirmity or disease.
The principal contentions in support of the appeal are: (1) That the indictment fails to state facts constituting a violation of the statute; and (2) that the evidence is insufficient to support the verdict of guilty. We consider these in the order stated.
1. The indictment contains no direct general charge of practicing medicine without a license, the charging part thereof being limited to the specific acts deemed by the state a violation of the statute. It is not in the best form. It might well have charged a violation of the statute in the language thereof, and set forth the acts constituting such violations in general terms, illustrated by the case of State v Edmunds, 127 Iowa 333, 101 N.W. 431, rather than by pleading the specific acts constituting the crime. Parks v. State, 159 Ind. 211, 64 N.E. 862, 59 L.R.A. 190; State v. Flanagan, 25 R.I. 369, 55 A. 876; White v. Circuit Judge, 133 Mich. 93, 94 N.W. 601. But, if the acts so specifically pleaded constitute a violation of the statute, the indictment is sufficient though it does not charge a commission of the crime in general terms. In the caption or introductory part of the indictment the crime of which defendant is accused is named or designated as that of "practicing medicine without a license, committed as follows." But that forms no part of the specific charge. State v. Howard, 66 Minn. 309, 68 N.W. 1096, 34 L.R.A. 178, 61 Am. St. 403. And as just stated if the facts which follow in the formal charging part of the indictment show a violation of the law it is...
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