State v. Winterich, 32810

• Decision Date: 30 April 1952
• Docket Number: No. 32810,32810
• Citation: 157 Ohio St. 414,105 N.E.2d 857
• Parties: , 47 O.O. 316 STATE v. WINTERICH.
• Court: Ohio Supreme Court

Page 414

157 Ohio St. 414

105 N.E.2d 857, 47 O.O. 316

STATE v. WINTERICH.

No. 32810.

Supreme Court of Ohio.

April 30, 1952.

Syllabus by the Court.

1. The provision of Section 12694, General Code, that 'whoever practices medicine or surgery, or any of its branches before obtaining a certificate from the State Medical Board in the manner required by law * * * shall for the first offense be fined,' applies to one who has a certificate for the practice of a limited branch of medicine or surgery and who practices medicine or surgery beyond the scope permitted by such limited certificate.

2. The term, 'drug,' is defined in Section 1296-1, General Code, as '(a) articles recognized in the official United States Pharmacopoeia, or official National Formulary, or any supplement to either of them, intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and (b) all other articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals, and (c) articles (other than food) intended to affect the structure of any function of the body of man or other animals; and (d) articles intended for use as a component or any articles specified in clause (a), (b), or (c); but does not include devices or their components, parts or accessories.'

3. The mere fact that an article is recognized in the official United States Pharmacopoeia or official National Formulary does not of itself, under the foregoing definition, constitute that article a drug.

4. A conviction of an alleged criminal offense cannot be predicated on general principles or mere suspicion, but must be predicated on probative evidence of every material element which is necessary to constitute the crime.

Appellant, Agnes H. Winterich, herein-after desgnated defendant, was charged with violating Section 12694, General Code, in that she had engaged in the practice of medicine without a license.

The pertinent part of the affidavit on which the prosecution of defendant was based, reads as follows:

'* * * that on or about the 22nd day of May, A. D. 1950, at the city of Cleveland in said county of Cuyahoga, one Agnes H. Winterich did unlawfully practice medicine and surgery at 10516 Wade Park avenue, before she, the said Agnes H. Winterich, had obtained a certificate to practice medicine and surgery or any of its branches from the State Medical Board of Ohio in the manner required by law, except certificates to practice chiropractic, electrotherapy and mechanotherapy which do not permit the use of drugs, in this to-wit: the said Agnes H. Winterich did then and there prescribe, advise, recommend and dispense for a fee, to-wit: the sum of thirty-five dollars ($35) certain drugs the nature of which are bills marked Si, MM, and Basic Endocrine Formula GE 8 labelled as containing brain extract, fennel and sage tea, for the cure and relief of the bodily infirmities and diseases of Viola Erickson, to-wit: thrombosis, platecia, stomach trouble, excessive systemic arsenic and body out of harmony, and further deponent says not * * *.'

The evidence discloses that one Viola Erickson, employed by the Cleveland Better Business Bureau, visited the office of defendant on May 22, 1950, and stated that she was Mrs. Mae Searles, that she was suffering with stomach trouble and frequent headaches and that she desired treatment.

Mrs. Erickson gave defendant a history of her physical condition and childhood diseases and was examined by defendant, the examination consisting of Mrs. Erickson's sitting before a machine, called a redioclast, and holding a small disc in her hand while defendant turned knobs on the machine and made notations on a sheet of paper. Thereafter Mrs. Erickson rested a short time and was then given a treatment with an instrument, the defendant turning knobs thereon and making more notations.

Defendant then gave Mrs. Erickson a chiropractic treatment.

The treatments consumed almost two hours.

Defendant told Mrs. Erickson that she had a platecia, which was a pinprick hole in the vein on the right side of the head which affected the vagus nerve, and that the vagus nerve was causing the stomach trouble.

After the treatment, defendant told Mrs. Erickson that the platecia was gone, that it might come back and that she should take further treatments.

Defendant advised Mrs. Erickson about her diet; that she should drink fennel and sage tea during the day; that she should drink only boiled water or Minnehaha water; that certain vegetables were infested with spray poison; and that she should drink either raw milk or goat's milk.

Defendant gave Mrs. Erickson two little packets of pills, an order blank with a designation GE 8 and a list of vegetables which could be eaten without washing and charged her $35, which sum Mrs. Erickson paid to defendant.

The two packets of pills and tablets contained only lactose or milk sugar with a small amount of common salt, and the preparation GE 8, purchased by Mrs. Erickson from the Basic Endocrine Sales Company, contained 'cholesterol, cerebrocides and lacithin, brain substance material along with some vegetable fiber.'

At the conclusion of all the testimony the court charged the jury in part as follows:

'I shall now define for you the meaning of several terms used thus far in this charge.

'Section 1296-1, Part 2 of the General Code, reads as follows: The term 'drug' or 'pharmaceutical preparation' means (a) articles recognized in the official United States Pharmacopoeia, or official National Formulary, or any supplement to either of them, intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and (b) all other articles intended for use in the diagnosis, cure, mitigatio, treatment or prevention of disease in man or other animals; and (c) articles (other than food) intended to affect the structure or any function of the body of man or other animals.'

'Now, Webster's abridged dictionary defines 'drug' as 'any substance used as a medicine or in making medicine for internal or external use.'

'Webster's also says that 'according to the Pure Food and Drug Act the term 'drug' includes all medicines and preparations recognized in the United States Pharmacopoeia and the National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure or mitigation of disease of either man or animal.'

'In this connection I may state that fennel and sage are used in the United States Pharmacopoeia as drugs and therefore come within the definition as drugs.'

At the conclusion of the charge the jury retired and thereafter requested further instructions from the court. Upon the return of the jury to the courtroom, one of its members handed the judge a written slip on which were written the words, 'If sage and fennel are used as a tea are they still considered a drug?'

The judge answered the question in the affirmative and, after the jury had returned to the jury room, advised counsel of the contents of the written inquiry and his answer thereto.

The jury found defendant guilty as charged, and sentence was imposed.

The Court of Appeals affirmed the judgment of the Municipal Court.

The cause is before this court upon the allowance of a motion to certify the record.

Fred W. Garmone and Irwin B. Fried, Cleveland, for appellant.

Joseph H. Crowley, Director of Law, Joseph Stearns and Vatro J. Grill, all of Cleveland, for appellee.

STEWART, Judge.

At the outset of this case, defendant moved the court to enter judgment in her behalf because the affidavit did not state a a cause of action, which motion was overruled and exception taken.

Defendant contends that the court erred in overruling the motion.

Section 12694, General Code, provides in part as follows:

'Whoever practices medicine or surgery, or any of its branches before obtaining a certificate from the state medical board in the manner required by law, or whoever advertises or announces himself as a practitioner of medicine or surgery, or any of its branches, before obtaining a certificate from the state medical board in the manner required by law; or whoever opens or conducts an office or other place for such practice before obtaining a certificate from the state medical board in the manner required by law; or whoever not being a licensee conducts an office in the name of some person who has a certificate to practice medicine or surgery, or any of its branches; or whoever practices medicine or surgery, or any of its branches, after a certificate has been duly revoked, or, if suspended, during the time of such suspension, shall * * *.'

Defendant contends that since the affidavit shows that at the time of the offense of which she was charged she was the holder of three certificates issued by the State Medical Board, authorizing her respectively to practice chiropractic, electrotherapy and mechanotherapy, she was not engaged in the practice of any of the branches of medicine or surgery without a license as alleged in the affidavit.

There is some force to defendant's contention.

There are no common-law crimes in Ohio, and it is well established that penal statutes must be construed strictly.

This court held in State v. Meyers, 56 Ohio St. 340, 47 N.E. 138, that 'a statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.'

However, Section 12694, General Code, must be read in connection with Section 1274-1, which authorizes the State Medical Board to 'examine and register persons desiring to practice any limited branch or branches of medicine or surgery' and which defines such limited branches to 'include chiropractic * * * mechanotherapy * * * electro-therapy,' and also must be read in connection with Section 1274-3, which provides that...