State v. Yates

• Decision Date: 11 January 1910
• Citation: 145 Iowa 332,124 N.W. 174
• Parties: STATE v. YATES.
• Court: Iowa Supreme Court

145 Iowa 332

124 N.W. 174

STATE

v.YATES.

Supreme Court of Iowa.

Jan. 11, 1910.

Appeal from District Court, Page County; A. B. Thornell, Judge.

Defendant was convicted of practicing as a physician and publicly professing to cure and heal without having recorded with the county recorder a certificate from the State Board of Medical Examiners, as required by Code, § 2580, and from this conviction he appeals. Reversed.

Deemer, C. J., dissenting.

Thos. W. Keenan, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.

McCLAIN, J.

The indictment was in two counts, in the first of which defendant was charged of wrongfully and unlawfully publicly professing to cure and heal a person or persons without having filed for record and recorded with the recorder of the county a certificate from the State Board of Medical Examiners conferring upon him the right to practice medicine, and as a physician publicly professing to cure or heal; and in the second count he was charged with willfully, wrongfully, and unlawfully publicly professing to be a physician, and unlawfully assuming the duties of the profession, without having filed for record and recorded such a certificate.

1. This indictment is not open to the objection of duplicity. In Code, § 2579, it is provided that “any person shall be held as practicing medicine, or to be a physician, who shall publicly profess to be a physician and assume the duties of that profession or who shall make a practice of prescribing or of prescribing and furnishing medicine for the sick, or who shall publicly profess to cure or heal.” And in section 2580 it is provided that any person who shall practice medicine in the state without having first obtained and filed for record the required certificate shall be punished as specified in that section. The acts charged are not stated as separate offenses, but as contemporaneous acts, which, construed together, constitute the practice of medicine. State v. Wilhite, 132 Iowa, 226, 109 N. W. 730. Even if the indictment be interpreted to charge two distinct acts, it is not objectionable, for they are both within the prohibition of Code, § 2580, and it is well settled that different acts enumerated disjunctively in the statute as constituting a specified crime may be conjunctively charged, or may be charged in different counts of the same indictment. State v. Hubbell, 137 Iowa, 570, 115 N. W. 232;State v. Stewart, 138 Iowa, 536, 116 N. W. 693.

2. The filing for record of the certificate with the recorder of the county is, under the statute, sufficient in this respect; but the fact that the indictment charges that the defendant practiced medicine “without having filed for record and recorded” the certificate required is an immaterial variance from the language of the statute. The filing for record is in fact the recording so far as the holder of the certificate is concerned; but, even if this were not so, the allegation as to recording is purely surplusage.

3. As tending to show that the defendant was publicly professing to cure and heal, the court admitted in evidence, over the defendant's objection that it was incompetent, irrelevant, and immaterial, an article published in a newspaper purporting to be a communication from defendant in which defendant, referring to a former arrest for a similar offense, stated: “I was arrested on a warrant sworn to by Dr. C. L. Jones accusing me of the practice of medicine and surgery, neither of which I have ever done. * * * I would raise my hand toward high heaven and swear before God and in the presence of men to the infamous lies sworn to in this warrant. If it is a crime to give relief to some afflicted brother, then I am guilty, and will continue to do so just as long as there is any justice in courts or any higher courts to appeal to. If it is a crime to do good, I thank God that I am a criminal and will go ahead doing good. You will find me at my old stand.” While this language did not contain an unequivocal admission that the defendant had been practicing medicine or professing to heal, it did indicate a purpose to continue to do those things which he had previously been doing...