The State v. Hathaway

• Decision Date: 20 March 1893
• Citation: 21 S.W. 1081,115 Mo. 36
• Parties: The State v. Hathaway, Appellant
• Court: Missouri Supreme Court

21 S.W. 1081

115 Mo. 36

The State v. Hathaway, Appellant

Supreme Court of Missouri

March 20, 1893

Appeal from Nodaway Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

C. M Napton for appellant.

(1) The second instruction given for the state is erroneous; it told the jury that the defendant must be found guilty without regard to the negative averments in the indictment. State v. Young, 36 Mo.App. 517. (2) The letter of August 25th purporting to come from Dr. Hathaway to Mrs. Rowley was improperly admitted in evidence because no evidence of his handwriting was offered. (3) The act concerning the practice of medicine and surgery passed April 2, 1883, is unconstitutional in so far as it authorizes the prosecution of a physician for practicing without license. Section 8 of the act confers on the board judicial power. Hall v Marks, 34 Ill. 362; People v. Dental Examiners, 110 Ill. 180; Poppen v. Holmes, 44 Ill. 360; Ex Parte Garland, 4 Wall. 333; State ex rel. v Gregory, 83 Mo. 123; State ex rel. v. State Board, 103 Mo. 22. (4) If it should be attempted in this state to deprive a practicing lawyer of his license, this could only be done by a court such as the constitution recognizes, and the defendant would have the right to a jury trial. "The right of trial by jury as heretofore enjoyed shall remain inviolate." -- Bill of Rights, sec. 28, and "No person shall * * * be deprived of life, liberty or property without due process of law." -- Bill of Rights, sec. 30. I maintain that section 8 violates both of those provisions. Ex Parte Garland, 4 Wall. 110, 333; Cooley on Constitutional Limitations, ch. 11, pp. 110, 450. (5) The entire act of April 2, 1883, is unconstitutional because of the proviso at the end of section 11. It is as follows: "Provided that the provisions of this act shall not apply to those that have been practicing medicine five years in this state." It was held in New Hampshire that a similar claim vitiated a similar act passed for a similar purpose. State v. Pennoyer, 18 A. 878; State v. Express Co., 60 N.H. 219; McCulloch v. Maryland, 4 Wheat. 316. The act is partial; it is class legislation; it deprives the citizens of the equal protection of the law. Missouri v. Lewis, 101 U.S. 22; Live Stock Ass'n v. Crescent City Co., 1 Abb. 388; Yick Wo v. Hopkins, 118 U.S. 356; In re Parrott, 6 Sawyer, 349; Hannibal v. Railroad, 31 Mo.App. 23; Cooley on Constitutional Limitations, 393; Bank v. Cooper, 2 Yerg. 599; Jones v. Perry, 10 Yerg. 59.

John M. Wood, Attorney General, for respondent.

(1) The information properly charges the offense. Revised Statutes, 1889, secs. 6871, 6872, 6875 and 6881. It is properly verified. Revised Statutes, sec. 4059; State v. Bennett, 102 Mo. 356. (2) The onus of showing he had a certificate devolved upon defendant. State v. Edward, 60 Mo. 490; State v. Schmidt, 14 Mo. 137; State v. Wheat, 6 Mo. 455; State v. Hirsch, 45 Mo. 430; State v. Harper, 58 Mo. 530; State v. Lipscomb, 52 Mo. 32. (3) Under the ruling in the case of State v. O'Brien, 74 Mo. 549, it was not necessary to negative the exceptions relating to students prescribing under the supervision of a preceptor rendering medical sevices gratuitously in cases of emergency, and commissioned surgeons of the United States army or navy or marine hospital. It follows that, in the absence of any evidence tending to bring the case within either of the above exceptions, no error was committed in the giving of instruction number 2 on the part of the state. (4) The letter from Dr. Hathaway to Mrs. Rowley is not contained in the record, and it does not appear whether the admission of it was erroneous and prejudicial. (5) The constitutionality of the act under which this prosecution was instituted was recognized in the cases of State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. State Board, 103 Mo. 22. (6) The persons to whom the act was made to apply (and those who were excepted from its provisions) were so circumstanced as to constitute them a class by themselves, and the act is not rendered unconstitutional by reason of the exception. City v. Weber, 44 Mo. 547; State v. Welton, 55 Mo. 288; Express Co. v. St. Joseph, 66 Mo. 681; St. Louis v. Spiegel, 16 Mo.App. 210; St. Louis v. Spiegel, 75 Mo. 145; Glasgow v. Rowse, 43 Mo. 479; St. Louis v. Green, 70 Mo. 562; St. Louis v. Sternberg, 69 Mo. 301.

OPINION

In Banc.

Gantt J.

This is a proceeding by information preferred in the circuit court of Nodaway county by the prosecuting attorney. It charges that the defendant at said county, on the first day of October, 1889, did unlawfully and willfully engage in the practice of medicine by publicly professing to be a physician and by then and there prescribing for one Olive A. Rowley, without being then and there authorized to practice as aforesaid by having a certificate as a physician duly issued to him by the board of health of the state of Missouri, and without having said certificate recorded in the county where defendant resided.

The information duly negatived the fact that defendant had practiced medicine five years prior to July 1, 1883; and that he was a student prescribing under a preceptor, or that his medical services were rendered gratuitously in an emergency, or that he was a surgeon in the United States army or navy or the marine hospital service.

Defendant moved to quash the information, because the information was not duly verified; that it stated no offense and that the law upon which it is based is unconstitutional. The motion was overruled and the cause tried to the court without a jury, the jury having been waived.

The testimony shows that the defendant was located at the Linville hotel in the city of Maryville, in the county of Nodaway, Missouri, in the summer of 1889, engaged in the practice of medicine. He had his professional card or advertisement published in the Maryville Republican, a newspaper printed and published in said city and county, and had an office at the Linville hotel, where he consulted with and prescribed for patients. Mrs. Olive A. Rowley, having seen his advertisement in the paper, and being afflicted with diseased hands, on the twenty-fourth day of August, 1889, in company with her husband, went and called for defendant at said hotel; defendant appeared at the door and was asked by Mr. Rowley if he was Dr. Hathaway; he replied that he was, and asked them into his office; they went in and consulted with defendant with regard to Mrs. Rowley's diseased hands and the treatment they should have. Defendant examined Mrs. Rowley's hands and pronounced the disease eczema. He said he thought he could cure the disease, but it would take some time. Mr. Rowley proposed he would pay him if he succeeded in curing the disease, but the defendant declined the proposition, saying he did not practice in that way; that he had $ 10 a visit. He then prescribed for Mrs. Rowley's hands -- that is, he told them what to do -- and said that he would send them some medicine to be used from St. Joseph. Mr. Rowley paid him for this consultation and prescription $ 10 at this time. On the twenty-fifth or twenty-sixth of August, the medicines were expressed from St. Joseph to Mrs. Rowley. Defendant continued treating Mrs. Rowley's hands until some time in October following.

Defendant did not offer any evidence in the trial.

The court instructed as follows:

"1. The court declares the law to be that the defendant is presumed to be innocent until proved guilty beyond a reasonable doubt; but a doubt to authorize an acquittal must be a substantial doubt of defendant's guilt, and not mere possibility of his innocence.

"2. The court declares the law to be that if it appears from the evidence that the defendant Hathaway at the county of Nodaway and state of Missouri, on or about the first day of October, 1889, or at any time within one year next before the fifteenth day of March, 1890, did publicly profess to be a physician, and that by reason of his so publicly professing to be a physician, one Olive A. Rowley accepted his services in his professional capacity by calling upon defendant, and defendant prescribed for said Rowley who was then and there a sick person, and that the defendant at the time of so prescribing for said Rowley had no certificate issued by the board of health of the state of Missouri, the court should find defendant guilty and assess his punishment at a fine of not less than $ 50 nor more than $ 500, or by imprisonment in the county jail for not less than thirty days nor more than one year, or by both such fine and imprisonment."

The defendant thereupon asked the court to declare the law of the case as follows, to-wit:

"1. The court declares the law to be, that, under the information and evidence introduced in this case, the court must, sitting as a jury, find the defendant not guilty as charged in said information.

"2. Unless the court, sitting as a jury, shall find beyond a reasonable doubt from the evidence in this case that on the twenty-fourth day of August, 1889, or prior thereto, at the county of Nodaway and state of Missouri, the defendant held himself out publicly to the community, and to Mrs. Olive Rowley, as a physician, and that she on said day applied to him as such physician to treat her for a disease of the hands with which she was then afflicted, and that the defendant did, as such physician, prescribe medicine for the cure of her said disease, then it was not necessary that said defendant should have recorded in the office of the county court of either Buchanan or Nodaway counties, in said state a certificate from the state board of health, and the defendant is not guilty as charged in the information in this case.

"3. The court declares the law to be, that unless it...