The State v. McCleary
| Decision Date | 06 April 1908 |
| Citation | 109 S.W. 638,130 Mo.App. 527 |
| Parties | THE STATE OF MISSOURI, Respondent, v. A. S. McCLEARY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Cass Circuit Court.--Hon. Chas. A. Denton, Special Judge.
AFFIRMED.
Judgment affirmed.
J. A McLane and A. A. Whitsitt for appellant.
(1) The defendant filed motion to quash the information, because it failed to charge any offense against defendant under the laws of this State, and the same should have been sustained. (2) At the trial the court erred in refusing to allow defendant to show that he was a student in a medical college prior to March 12, 1901, and in announcing to the attorneys, and in the presence and hearing of the jury that there was but one question in this case--"has this man a license or hasn't he; that is the sole question for me and this jury." (3) The court also erred in ignoring all the exceptions contained in the law, pertaining to the practice of medicine and surgery, both in the information and in the evidence and in the instructions to the jury. Nowhere in the instructions were the jury required to, or did they pass upon any of the exceptions enumerated in the law and in this brief.
J. S Brierly, Prosecuting Attorney, and W. D. Summers for respondent.
(1) The original information having been filed within one year after the date of the commission of the offense charged, the prosecuting attorney had the right thereafter at any time, to file an amended information without suffering the operations of the Statute of Limitations. R. S. 1899, secs. 2420, 2422; State v. Hansbrough, 181 Mo. 348. (2) The amended information upon which defendant was convicted sufficiently charges the offense; it is fully up to the forms which have been approved by the Supreme Court of this State in such cases. State v. Davis, 194 Mo. 485. (3) The law under which the information was drawn and conviction had, has been passed upon by the Supreme Court of this State and upheld. State v. Davis, 194 Mo. 485. (4) The section of the statute defining the offense with which defendant is charged except as a class therefrom, "physicians now registered." The information charges defendant with practicing medicine without a license to do so, and without any other legal authority so to do, etc., thereby generally negativing any other exception in the law which would excuse the act charged. Such allegation is sufficient. State v Brown, 8 Mo. 210; State v. Jaques, 68 Mo. 261; Austin v. State, 10 Mo. 595. (5) The exception of the classes as contained in the legislative act constitutes no part of the definition of the offense, and for that reason it was unnecessary that the information should aver the negative of the exceptions. State v. Elam, 21 Mo.App. 290; State v. O'Brien, 74 Mo. 549; State v. Doerring, 194 Mo. 415; State v. Smith, 60 Mo.App. 283; State v. Handler, 178 Mo. 42; State v. Bostruck, 136 Mo. 351; State v. Broeder, 90 Mo.App. 165; State v. Quinn, 170 Mo. 176. (6) If defendant, on or prior to March 12, 1901, had matriculated in a medical college and had secured his diploma therefrom, this under the amendment of 1903 (Session Acts 1903, page 241), might have justified the State Board of Health in issuing to him a license to practice medicine, but it having been shown that no such license was ever issued to him, and this being the only defense offered, it was properly rejected. State v. Doerring, 194 Mo. 415.
--On May 19, 1905, defendant was indicted on a charge of practicing medicine and surgery in Cass county on the 22d day of April, 1905, "without first having obtained from the State Board a certificate authorizing him to so practice," etc. March 17, 1906, on motion filed by defendant, the indictment was quashed and the prosecuting attorney on the same day filed an information against defendant in part as follows:
"That A. S. McCleary, not being a registered physician, on March 12, 1901, late of the county aforesaid, on the 22d day of April 1905 at the county of Cass, State aforesaid, did unlawfully practice medicine and surgery and did then and there treat the sick and afflicted by prescribing for and treating medicinally and professionally as a physician, one J. B. Hobbs, without first having obtained from the State Board of Health, of the State of Missouri, a license authorizing him, the said A. S. McCleary, to practice medicine and surgery."
Afterward, on the 11th day of September, 1906, the following amended information was filed: "For amended information, on his official oath, D. C. Barnett, prosecuting attorney within and for the county and State aforesaid, informs the court that A. S. McCleary, late of the county aforesaid, on the 22d day of April, A. D. 1905, at the county of Cass, State aforesaid, did unlawfully practice medicine and surgery and did then and there treat the sick and afflicted by examining, diagnosing, operating upon, prescribing for and treating medicinally and professionally as a physician, one J. B. Hobbs, without first having obtained from the State Board of Health of the State of Missouri, a license to so practice medicine and surgery or so to treat the sick and afflicted and without any legal authority so to do; he, the said A. S. McCleary, heretofore, at the May term of this court, 1905, and on the 19th day of May, 1905, having been indicted by the grand jury for the State of Missouri, summoned from the body of Cass county, empaneled, charged and sworn, for the same offense as herein charged, which indictment was pending in this court from the last date aforesaid until the same was quashed and set aside by the filing by said prosecuting attorney on March 17, 1906, of the information in this cause, of which information this is the amended information, and the entering by the said prosecuting attorney of a nolle to said indictment in this court on the 24th day of March, A. D. 1906, on account of said indictment being defective, against the peace and dignity of the State."
A motion to quash the amended information filed by defendant was overruled, the cause went to trial, was submitted to the jury, verdict of guilty was returned and a fine of fifty dollars was assessed against defendant, who, after ineffectually moving for a new trial and in arrest of judgment, brought the case here by appeal.
The fact that defendant gave medical treatment to the person named in the indictment and informations at the time and place specified is established conclusively by the evidence of the State and is not denied by defendant. It is conceded that the services were not gratuitous; that defendant had no license from the State Board of Health to practice medicine and surgery in this State; that he was not a registered physician on March 12, 1901, and was not a commissioned surgeon of the United States army, navy and marine hospital service. In support of his claim that he had a right to practice medicine, defendant offered to prove that in 1900, he matriculated (i. e. was enrolled as a pupil) in the Eclectic Medical University of Kansas City, Missouri, pursued a four years' course of study therein, graduated and received a diploma therefrom in 1904; that he presented to the Board of Health competent evidence of these facts, together with proof of his good moral character, tendered payment of the license fee of fifteen dollars and requested that a license be issued to him, but that the Board arbitrarily and without good cause refused to grant the license. The refusal of the trial...
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