State v. Welch

• Decision Date: 20 December 1901
• Citation: 40 S.E. 120,129 N.C. 579
• Parties: STATE v. WELCH.
• Court: North Carolina Supreme Court

40 S.E. 120

129 N.C. 579

STATE v. WELCH.

Supreme Court of North Carolina

December 20, 1901

Appeal from superior court, Macon county; Geo. A. Jones, Judge.

J. L Welch was convicted of practicing medicine or surgery without a license, and appeals. Affirmed.

J. F Ray, for appellant.

Brown Shepherd, for the State.

CLARK J.

The defendant is indicted for practicing medicine or surgery without license. The bill is drawn under section 5, c. 181, Laws 1889, and is a verbatim copy of the indictment which was sustained in State v. Van Doran, 109 N.C. 864, 14 S.E. 32. The defendant moved to quash the bill, and also in arrest of judgment, because: (1) It did not negative the provision in the statute allowing persons to pursue the avocation of midwifery. (2) The bill fails to allege the defendant practiced for "fee or reward." (3) The bill alleges defendant "unlawfully and willfully did practice or attempt to practice medicine or surgery," and the offenses of practicing and attempting to practice are so distinct that the charge is not set forth in "a plain intelligent, and explicit manner." (4) That the words "register and obtain" license should be in the bill, and not merely a failure to obtain license. The motion being overruled, the defendant excepted. The provision as to the exception of "women practicing as midwives" is in the proviso, and, instead of constituting a part of the offense, withdraws a certain class from its operation. Hence the bill need not negative the defendant belonging to that class. That would be a matter of defense, and, indeed, it affirmatively appears in the evidence that the defendant is not a woman. This statute does not contain the words "without fee or reward." The first two exceptions are passed upon and denied in State v. Call, 121 N.C. 643, 28 S.E. 517. The third exception is fully discussed and held invalid in State v. Van Doran, supra. The words excepted to in the fourth ground of defendant's motion are copied from the bill in Van Doran's Case, which was cited again in State v. Call, supra, which case says "an approved form of indictment under the act of 1889 may be found in State v. Van Doran.'' Indeed, as the bill charges that the defendant did not exhibit to the clerk the license nor make the oath necessary to procure registration and did practice, "not then and there having obtained from said clerk of the court a certificate of registration," it certainly...