State v. Van Doran

• Decision Date: 13 October 1891
• Citation: 14 S.E. 32,109 N.C. 864
• Parties: STATE v. VAN DORAN.
• Court: North Carolina Supreme Court

14 S.E. 32

109 N.C. 864

STATE v. VAN DORAN.

Supreme Court of North Carolina

October 13, 1891

The facts fully appear in the following statement by AVERY, J.:

This was a criminal action for the statutory offense created by chapter 181 of the Laws of 1889, tried at the spring term 1891, of the superior court of Washington county, before BRYAN, Judge.

The indictment was in form as follows: "The jurors for the state," etc., "present that L. W. Van Doran, in Washington county, on the first day of March, 1891 unlawfully and willfully did practice, or attempt to practice, medicine or surgery, the said L. W. Van Doran not then and there having produced and exhibited before the clerk of the superior court of said county a license obtained from the board of medical examiners of the state of North Carolina, or a diploma issued by a regular medical college prior to the 7th day of March, 1885, nor made oath that he was practicing medicine or surgery in the state prior to said 7th day of March, 1885, and not then and there having obtained from the said clerk of the court a certificate of registration, and not then and there having a temporary license so to practice medicine or surgery; contrary to the statute in such cases made and provided, and against the peace and dignity of the state. "It was in evidence that the defendant claimed to have graduated at a medical college in Chicago, and to have lost his diploma. There was no evidence of a license from the medical board of North Carolina, but the defendant had applied to the clerk to be registered as a physician, and his application had been refused.

A. O Gaylord, for appellant.

The Attorney General, for the State.

AVERY J., (after stating the facts.)

Where a statute makes two or more distinct acts, constituting separate stages of the same transaction, indictable, (as, in the case at bar, the acts of practicing, or attempting to practice, medicine,) both or all may be charged in a single count of the indictment. 1 Whart. Crim. Law, (7th Ed.) § 390; 10 Amer, & Eng. Enc. Law, p. 599d v d; State v Bordeaux, 93 N.C. 560; State v. Parish, 104 N.C. 680, 10 S.E. Rep. 457. If the distinct acts representing the successive stages of the transaction, were connected in the statute by the word "or," it was in accordance with the settled precedents in drawing the indictment to couple the independent clauses by using the word "and," instead of the following closely the language of the statute and using "or" Bish. St. Crimes, § 244; State v. Harper, 64 N.C. 129. The reason for discarding the disjunctive, and substituting the conjunctive, was that usually the alternative charge left the defendant in such doubt as to the nature of the offense which he was held to answer that he could not intelligently prepare his defense; as where an indictment charged property, alleged to have been stolen, in "A. or another," giving the prosecutor the opportunity to sustain the charge by proving the property in any human being in the world, instead of averring that it was the property of A. and another, (who was shown by the proof to be his partner) State v. Capps, 71 N.C. 93; state v. Harper, 64 N.C. 130. But upon the maxim, cessante ratione cessat et ipsa lex v cessante ratione cessat et ipsa lex, the better rule seems now to be that "or" is only fatal when the use of it renders the statement of the offense uncertain, and not so when one term is used as only as explaining or illustrating the other, or where the language of the law makes either an attempt or procurement of an act or the act itself, in the alternative, indictable. 1 Whart. Crim. Law, § 294; U.S. v. Potter, 6 McLean, 186. Where it is manifest that the defendant cannot be embarrassed by uncertainty in preparing his defense by reason of the use of the disjunctive instead of the conjunctive, if the form ordinarily used in drawing the indictment should be treated as an established precedent essential in all cases, it would be an arbitrary and unreasonable rule. Taking the language of the statute under which the indictment in U.S. v. Potter, supra, was drawn, as an illustration, it would be difficult to explain how the accused would be put to disadvantage or left in doubt in making his preparation to meet the accusation, because he was charged with "cutting or causing to be cut," and was uncertain whether the state would offer testimony tending to prove the commission of the one act or the other, when all the authorities concur in stating the rule to be that, if the usual precedent had been followed and the language employed in the indictment had been "cutting and causing to be cut," the prosecution could have sustained the charge by proof of either act, thus leaving the defendant in equal uncertainty. 10 Amer. & Eng. Enc. Law, "indictment," p. 599d v d, par. 16h; v h; State v. Keeter, 80 N.C. 472; Bish. St. Crimes, § 244; State v. Ellis, 4 Mo. 475; State v. Locklear, Busb. 205; Whart. Crim. Pl. & Pr. § 252. But if we admit (as many authorities tend to prove) that, where no statute affecting procedure has been passed to modify if, it is a rule of law that charges of the acts representing the different stages of the same transaction must be coupled by the word "and" in the indictment, still, giving a fair interpretation to our curative act, (Code, § 1183,) we think that the charge is expressed "in a plain, intelligible, and explicit manner," (certainly as definitely as in the old prescribed precedent;) that sufficient matter appears in the indictment to enable the court to proceed to judgment; and therefore that it should "not be quashed." State v. Rinehart, 75 N.C. 58; State v. Walker, 87 N.C. 541; State v. Lane, 4 Ired. 113; State v. Wilson, 67 N.C. 456; State v. Sprinkle, 65 N.C. 463; State v. Parker, Id., 453. The defendant moved in arrest of judgment because the indictment failed to specify upon what particular person he practiced medicine or surgery. The governing principle to be applied in passing upon the sufficiency of the averments in an indictment is that the nature of the offense charged should appear so explicitly and plainly from its terms as to leave the defendant in no well-founded doubt in preparing to meet the accusation. The indictment is framed under section 5, c. 181, Laws 1889. It is not essential that the prosecution should show, in order to convict under the statute, that the defendant ever prescribed for or practiced upon a particular patient; but it would be sufficient to prove that he held himself out to the public as a physician or surgeon, and invited or solicited professional employment from any who might need or desire such service. If the defendant merely held himself out to the public as a physician or surgeon, he was guilty of the offense created by the statute. It would be unreasonable, therefore, to declare that the indictment upon its face is defective because the charge is not more specific in describing the manner of practicing or attempting to practice. The precedents found in the books, and used in prosecutions, under similar statutes, tend to sustain our position. Bish. Dir. & Forms, §§ 996-1000. The offense seems to be described with sufficient certainty in the language of the law, and no extrinsic proof is needed to bring it within its terms. This indictment is not analogous to the charge of disposing of mortgaged property, drawn under the acts of 1873-74 and 1874-75, because in that case, as the court declared, the words "dispose of," in their literal sense, were worse than a drag-net, and, taken with reference to the subject at hand, they might mean disposition by removing from the county, concealing, selling, or by the actual consumption of such as were fir for food." State v. Pickens, 79 N.C. 652. Besides, there were certain extrinsic facts that it was essential to aver and prove. State v. Burns, 80 N.C. 376. The offense is charged in the indictment in such terms that the defendant cannot be guilty of it without being brought within the express meaning of the statute, and this has been declared a test of its sufficiency in such cases. Young's Case, 15 Grat. 664. It has been stated as an established rule that where an offense is prohibited in general terms in one section of the statute, and in another and entirely distinct section the acts of which the offense consists are specified, it is not necessary that anything but the general description should be set out in the indictment. State v. Casey, 45 Me. 435. Where the very nature of...