Territory v. Newman

• Decision Date: 24 February 1905
• Citation: 79 P. 706,13 N.M. 98,1905 -NMSC- 015
• Parties: TERRITORY v. NEWMAN. [*]
• Court: New Mexico Supreme Court

79 P. 706

13 N.M. 98, 1905 -NMSC- 015

TERRITORY v. NEWMAN. ^[*]

Supreme Court of New Mexico

February 24, 1905

Syllabus by the Court.

1. In the trial of one charged with practicing medicine without having obtained a license as required by chapter 40, p. 61 of the Session Laws of 1903, an instruction to the jury that there was no evidence to justify conviction on the first and third subdivisions of section 6 of said act, as made by the court for the purpose of a trial, and that they should consider only the evidence bearing on the second subdivision was sufficiently favorable to the defendant.

2. The defendant was not entitled to have the jury instructed to return a verdict of not guilty on the ground that there was no evidence to show that he had at any time engaged, or offered to engage, in the practice of medicine.

3. Chapter 40, p. 61, of the Session Laws of 1903, is not class legislation within the meaning of the fourteenth amendment of the Constitution of the United States.

Appeal from District Court, Chaves County; before Justice William H Pope.

J. M Newman was convicted of practicing medicine without a license, and appeals. Affirmed.

The defendant was indicted October 31, 1904, for practicing, or offering to practice, medicine without having obtained a license as required by section 9 of chapter 40, p. 64, of the Session Laws of 1903, and was tried and convicted by a jury November 3, 1904. A motion for a new trial was filed in his behalf, and overruled after hearing, and on the same day he was sentenced by the court to pay a fine and to be imprisoned, but the sentence to imprisonment was suspended. From said judgment and sentence the defendant appealed. The essential parts of the statute in question appear in the opinion.

Mann, J., dissenting.

A. J. Nisbet and J. L. Johnson, for appellant.

George W. Prichard, Sol. Gen., for the Territory.

ABBOTT J.

(after stating the facts). We take up the appellant's objections to the judgment appealed from in the inverse order of their importance; and, first, the claim that it was error to instruct the jury there was no evidence to warrant a conviction on the first and third subdivisions of section 6 of chapter 40 of the Session Laws of 1903, and that they should take into consideration only the evidence bearing on the second subdivision. The instruction objected to was as follows: "'The practice of medicine' *** means (1) to open an office for the practice of medicine; or (2) to announce to the public or to any individual, in any way, a desire or willingness or readiness to treat the sick or afficted, or investigate or diagnose, or offer to investigate or diagnose, any physical or medical ailments or disease of any person; or (3) to suggest, recommend, prescribe, or direct for the use of any person any drug, medicine, appliance, or other agency, whether material or not material, for the use, relief, or palliation of any ailment or disease of the mind or body, or the cure or relief of any wound, fracture, or bodily injury or deformity, after having received or with the intent to receive therefor, either directly or indirectly, any bonus, gift, or compensation." This instruction seems to us to have been favorable to the defendant, rather than otherwise, since it greatly restricted the number of acts which the jury might otherwise have found the defendant committed in violation of the statute. The subdivision complained of was a proper and appropriate one, under the circumstances.

The appellant objects, further, that by the statute in question a new, unusual, and false meaning was given to the phrase "practicing medicine"; that he never engaged or offered to engage in the practice of medicine; that, on the contrary, the evidence showed him to be a practitioner of a system of drugless healing; and that the Legislature could not so extend the meaning of said words "practice of medicine" as to cover and include methods of healing diametrically opposed to the practice of medicine as theretofore commonly understood and defined; and he cites in support of his contention State of North Carolina v. Biggs, 133 N.C. 729, 46 S.E. 401, 64 L. R. A. 139, 98 Am. St. Rep. 731, in which that doctrine is strongly set forth and adopted as the opinion of the court. But it seems to us that the opinion makes the question one of form, rather than substance, whereas it is the thing prohibited, and not the words by which it is described, that is alone important. It would perhaps have been possible for the Legislature to choose a better phrase under which to group healing methods of all kinds, although the use of the expressions "practicing medicine" to mean the art of healing is by no means new, but rather a return to the original meaning of the word "medical." But whatever may be thought of the terms in which the prohibition of the statute is expressed, there can be no doubt of their meaning; and the appellant was clearly forbidden to do that which the evidence shows, and he does not deny, that he did, without a license from the Board of Health as provided for by the statute. That it is not claimed he had, and, if the statute is valid, he is liable to the penalty imposed by it.

The appellant, however, contends that the statute is invalid first, if we correctly understand the brief submitted in his behalf, because certain acts are made punishable if done for...