State v. Zechman
| Decision Date | 12 November 1912 |
| Citation | 138 N.W. 387,157 Iowa 158 |
| Parties | STATE OF IOWA v. J. H. ZECHMAN, Appellant, and STATE OF IOWA v. J. E. ZECHMAN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
THE defendants were separately indicted, tried, and convicted for the crime of illegal practice of medicine, and each has appealed from such conviction.
Affirmed.
Morris & Hartwell, and F. G. Ryan, for appellants.
George Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for the State.
As the appeals in these two cases involve the same questions, they may well be considered and decided together.
I. The charge in the indictment in each case was that the defendant in Polk county "did wilfully and unlawfully practice medicine and then and there publicly professed to be a surgeon, physician and obstetrician and assume the duties of such and make a practice of prescribing and furnishing medicine for the sick and publicly professed to cure and heal;" and, further, that the defendant "then and there did not have a certificate from the proper authorities so to practice and did not file with the county recorder of Polk county any such certificate to practice." And the court instructed the jury in each case that if defendant did publicly profess to cure and heal, etc., in Polk county without having procured a license, and filed the same with the county recorder of Polk county, then the defendant might be found guilty.
The particular complaint for the appellants is that the indictments charged a failure to file a license with the county recorder of Polk county, without any allegation that defendant was a resident of that county, and that the court instructed the jury in each case that the practice of medicine in Polk county by defendant without recording a license in that county would constitute a crime, although there was no allegation or proof that the defendant was a resident of that county. The construction of the statute relied upon for the defendants is unquestionably correct, for it is provided in Code, section 2577, that the certificate of license granted by the state board of examiners shall be filed for record "in the office of the recorder of the county in which he (the person licensed to practice) resides," and that "the same record must be made of the certificate in any county to which the holder may remove and in which he proposes to practice." Plainly, under these statutory provisions, a practitioner who has procured the proper certificate or license, and has had it recorded in the county of his residence, is entitled to practice in any county in the state, unless he is an itinerant physician as described in Code, section 2581; and he is required to have it recorded in another county only in the event of a change of residence. Neither the indictment nor the evidence negatives the residence of the defendants in another county in the state, and the fact alone of the practice of the defendants in Polk county without filing of a certificate in that county does not make out a case against the defendants in that respect.
But we think that any prejudice to the defendants from the error of the court in the instructions to the jury in the matter here referred to is clearly negatived by the record. The indictments sufficiently charged the defendants with practicing in Polk county without having a certificate from the proper authorities so to practice. If the defendants did not have such certificates then their practice in Polk county or any other county in the state was unlawful without regard to the filing of a certificate in Polk county or any other county; for, if defendants did not have certificates, no such certificates could be filed anywhere. The charge of practicing without having procured certificates is fully made out in the indictment, and the additional charge of failure to file with the recorder of Polk county is in this respect surplusage. The charge of illegal practice of medicine, so far as these defendants are concerned, is fully made out by the allegation that they practiced medicine in Polk county without having any certificate entitling them to so practice.
Now it appears from the record that the defendants had no certificates...
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