State v. Wee
| Decision Date | 30 March 1929 |
| Docket Number | 5243 |
| Citation | 47 Idaho 416,275 P. 1112 |
| Parties | STATE, Respondent, v. FONG WEE, Appellant |
| Court | Idaho Supreme Court |
CRIMINAL LAW-INFORMATION-DUPLICITY-DEMURRER.
1. That more than one offense is charged in an indictment or information is ground for demurrer.
2. That indictment or information alleges more than one offense is ground for motion in arrest of judgment, unless objection has been waived by failure to demur, in view of C. S., secs 8812, 8870, 9019.
3. Laws 1923, chap. 60, secs. 1, 2, relating to unlawful practice of medicine, and unlawful holding out as practitioner, DOCTor or professional practitioner without license, constitutes two separate offenses, which under C. S., sec. 8829, cannot be charged in one indictment.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.
Fong Wee was convicted of a violation of the provisions of Sess Laws 1923, chap. 60, p. 68, and he appeals. Reversed.
Reversed and remanded with directions.
E. B Smith and Wm. M. Morgan, for Appellant.
An information must charge but one offense and where more than one is charged it is subject to demurrer and, in the event of conviction, a motion in arrest of judgment should be sustained. (C. S., secs. 8812, 8829, 8870, 9019; State v. Bilboa, 33 Idaho 128, 190 P. 248; State v. Hall, 33 Idaho 135, 190 P. 251; State v. Cooper, 35 Idaho 73, 204 P. 204; State v. Brown, 36 Idaho 272, 211 P. 60.)
A defendant has not been given a fair trial, within the meaning of the law, where he has been tried upon a single count for two or more distinct offenses and the jury has been instructed that if it finds him guilty of either it may convict him. (State v. Sorensen, 37 Idaho 517, 216 P. 727; Jakeman v. Oregon Short Line R. R. Co., 43 Idaho 505, 256 P. 88; State v. Young (Mo. App.), 215 S.W. 499; State v. McHenry (Mo.), 207 S.W. 808.)
W. D. Gillis, Attorney General, and Fred J. Babcock and Leon M. Fisk, Assistant Attorneys General, for Respondent.
A crime may be stated in the words of the statutes. (C. S., sec. 8835; State v. Caldwell, 21 Idaho 663, 123 P. 299; State v. McMahon, 37 Idaho 737, 219 P. 603; People v. Brown, 61 Cal.App. 748, 216 P. 58; People v. De Martini, 25 Cal.App. 9, 142 P. 898.)
The information in this case is sufficient under the Idaho statutes. (State v. Bowman, 40 Idaho 470, 235 P. 577; Rural High School Dist. No. 1 v. School Dist. No. 37, 32 Idaho 325, 182 P. 859; Wood v. Independent High School Dist., 21 Idaho 734, 124 P. 780; People v. Rutledge, 172 Cal. 401, 156 P. 455; People v. Wah Hing, 47 Cal.App. 327, 190 P. 662; People v. Cochran, 56 Cal.App. 394, 205 P. 473; People v. Ryan, 59 Cal.App. 776, 212 P. 35; People v. Chow Juyan, 28 Cal.App. 124, 151 P. 554; People v. Poo On, 49 Cal.App. 219, 192 P. 1090; C. S., secs. 8270--8277, 8825, 8827, 8829, 8834, 8835; Black on Interpretation of Laws, pp. 298, 300, 317, 597; State v. Cutts, 24 Idaho 329, 133 P. 115.)
Demurrer to the information was overruled, after which appellant entered a plea of not guilty and was tried and convicted. Motion in arrest of judgment was denied. This appeal is taken from the judgment of conviction.
The principal question here is whether the information was defective, appellant's contention being that it was duplicitous as charging more than one offense. The information charged a violation of secs. 1 and 2 of the act above referred to, following substantially the language of the statute, and the difference between the positions taken by appellant and the state is whether these section, considered together, set forth one or two crimes. That more than one offense is charged in an information or indictment is ground for demurrer, and motion in arrest of judgment may be founded on any of the defects in the information or indictment that are grounds for demurrer, unless the objection has been waived by failure to demur. (C. S., secs. 8812, 8870, 9019.) Sections 1 and 2 of chap. 60, supra, provide:
We think it is apparent from a reading of these two sections in connection with the title of the act, also quoted hereinabove, that it was the legislative intention to make all or any of the acts designated in section 1 an offense, and all or any of the acts designated in sec. 2 another or additional offense. If it were otherwise, it would not have been necessary in the title to set out that the acts covered by the two sections were each made unlawful, nor is it likely each of the sections would have provided for the necessity of having a license or certificate issued by the state in order for a person or persons doing any of the things therein set out not to be subject to prosecution.
It is contended by the state that chap. 60 was taken from the Medical Practice Act of California, sec. 17 (Cal. Stats. 1913, p. 734; Henning's General Laws of California, p. 1719), and we are urged to apply the rule, found in Black on Interpretation of Laws, p. 597, that:
"If the legislature of a state in enacting a statute, literally or substantially copies the language of a statute previously existing in another state, or borrows from such statute a provision, clause, or phrase, the same having received a settled judicial interpretation in the state of its origin, it is presumed that the enactment was made with knowledge of such interpretation, and that it was the design of the legislature that the act should be understood and applied according to that interpretation."
The state next directs attention to the case of People v. Ratledge, 172 Cal. 401, 156 P. 455, wherein the supreme court of California held an information containing the averment that the accused "did willfully and unlawfully practice, attempt to practice and advertise and hold himself out as practicing a system and mode of treating the sick and afflicted in the state of California without then and there having a valid, unrevoked certificate authorizing him to practice a system or mode of treating the sick and afflicted in this state from the board of medical examiners of the state of California," sufficiently charged a violation of sec. 17 of the Medical Practice Act (Stats. Cal. 1913, p. 734) and was not open to the criticism that it sought to impute many offenses to defendant because any one of the acts or omissions averred and conjunctively pleaded would suffice as the basis of an information.
The difficulty of applying the rule of interpretation urged by the state is the presence of a number of distinctions which should be nonexistent if the rule is to be invoked. The information in the California case charged only a violation of what may be likened to the provisions of sec. 1 of the Idaho statute. If that had been the extent of the charging part of the information in the instant case, we should not hesitate to follow the California court in holding it invulnerable for duplicity. Again, the Idaho statute...
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