State v. Young

• Decision Date: 04 November 1919
• Docket Number: No. 15251.,15251.
• Citation: 215 S.W. 499
• Parties: STATE v. YOUNG.
• Court: Missouri Court of Appeals

215 S.W. 499

STATE v. YOUNG.

No. 15251.

St. Louis Court of Appeals. Missouri.

November 4, 1919.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

S. C. Young was convicted of practicing medicine without a license, and appeals. Reversed and remanded.

Edward D. Hays, of Cape Girardeau, for appellant.

J. Henry Caruthers, of Cape Girardeau, for the State.

BIGGS, C.

This is an appeal from the Cape Girardeau circuit court, where defendant, S. C. Young, was convicted of practicing medicine without a license from the state board of health. His punishment was assessed by a jury at a fine of $50.

The information upon which the defendant was tried and convicted reads thus:

"Comes now J. Henry Caruthers, prosecuting attorney, within and for Cape Girardeau county, in the state of Missouri, upon his oath of office and upon the affidavit of R. E. Cunningham, hereto attached, and informs the court and charges that S. C. Young, on the _______ day of January, 1915, at the township of Cape Girardeau, in the county of Cape Girardeau and state of Missouri, and from said date until the _________ day of July, 1915, did then and there unlawfully and wrongfully practice medicine and surgery, and did attempt to treat the sick and others afflicted with bodily and mental infirmities, and did then and there represent and advertise himself by means of certain printed matter and by other means and manner so as to indicate that he was authorized to practice medicine and surgery in this state, and that he was authorized to treat the sick and afflicted with bodily and mental infirmities, without then and there having a license from the state board of health, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state."

The verdict was general in character and found the defendant guilty as charged. The information is bottomed upon sections 8311 and 8315 of the revision of the statutes of 1909.

The appellant attacks the sufficiency of the information by reason of the fact that the information fails to negative the proviso of section 8315 as follows:

"Provided, that physicians registered on or prior to March 12th, 1901, shall be regarded for every purpose herein as licentiates and registered physicians under the provisions of this article."

This point is made here for the first time. Inasmuch as no motion to quash was filed and the sufficiency of the information was not challenged, either in the motion for new trial, or in the motion in arrest, we would be justified in disregarding the point on that ground. However, an appellate court may consider serious and substantial defects in an indictment when raised for the first time in the appellate court, or an appellate court may consider such defects of its own motion. State v. Meyers, 99 Mo. 107, 12 S. W. 516; State v. Burke, 151 Mo. 136, loc. cit. 140. 52 S. W. 226; State v. Hellscher, 150 Mo. App. 230, loc. cit. 232, 129 S. W. 1039. There is no merit in appellant's contention, as the point has been directly ruled against the appellant in the case of State v. Humfeld, 182 Mo. App. 639, 166 S. W. 331, and State v. Smith, 233 Mo. 242, 253, 254, 255, 135 S. W. 465, 33 L. R. A. (N. S.) 179. Under these decisions, the prosecutions were based upon the same statute here involved, and it was distinctly held that the information was sufficient, though it contained no negative averment touching the subject-matter of the proviso, as this was a matter of defense.

The appellant further contends that the verdict being general in character was had, in view of the fact that the information charged separate and distinct offenses, namely, practicing medicine, attempting to practice medicine, and advertising as a physician without a license, and that by reason of such general verdict the defendant was not informed of which offense he was guilty.

The trial court in its main instruction to the jury told them they should find the defendant guilty as charged, in the event they believed from the evidence beyond a reasonable doubt that at any time within one year next before the 16th day of July, 1915, the defendant did practice medicine or surgery, or did attempt to treat the sick and others afflicted with bodily and mental infirmities by manipulating, adjusting, or massaging the muscles or the spinal column or nerves or by directing the diet of a person, or did represent and advertise himself by means of printed matter or signs so as to indicate that he was authorized to practice medicine or surgery in this state, and did not have a license from the state board of health. This instruction follows the language of the statute, section 8315.

There was no further instruction from the court to the jury directing it to state in its verdict of which one of these offenses defendant was guilty in the event of conviction.

Section 8315 provides that any person practicing medicine or surgery in this state and any person attempting to treat the sick, etc., and any person advertising himself so as to indicate that he is authorized to or does practice medicine or surgery, or that he is authorized to or does treat the sick or others afflicted with bodily or mental infirmities, without a license from the state board of health, shall be deemed guilty of a misdemeanor..

This statute provides for three separate and distinct offenses, and, the defendant in this case being charged with all three of the offenses, the verdict should have been specific as to whether be was guilty of one or the other or of all of them. As the matter was submitted to the jury, some of the jury may have believed him guilty...