The State v. Saak

• Decision Date: 06 December 1916
• Citation: 190 S.W. 296,269 Mo. 231
• Parties: THE STATE v. HENRY SAAK, Appellant
• Court: Missouri Supreme Court

190 S.W. 296

269 Mo. 231

THE STATE v. HENRY SAAK, Appellant

Supreme Court of Missouri, Second Division

December 6, 1916

Appeal from Warren Circuit Court. -- Hon. James D. Barnett, Judge.

Affirmed.

T. W Hukriede, E. Rosenberger & Son and Morris & Hartwell for appellant.

(1) The indictment is defective in that it does not allege that the defendant was not registered as a physician or surgeon on or prior to March 12, 1901. This is a part of the act describing the offense and therefore should have been negatived in the information. This exact question was settled in this court in State v. Carson, 231 Mo. 1, which expressly approves State v. Hellscher, 150 Mo.App. 230. To the same effect see: State v. Hellscher, 156 Mo.App. 63; State v. Brand, 153 Mo.App. 27. (2) The information is defective for duplicity and this is a sufficient reason for setting aside the verdict. These matters were particularly made part of the reasons for asking for a new trial, and also in the motion in arrest of judgment.

John T Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

(1) The information was not defective because it failed to state that appellant was not authorized to practice medicine and surgery on or before March 12, 1901. State v. DeGroat, 259 Mo. 375; State v. Smith, 233 Mo. 253; State v Price, 229 Mo. 682; State v. O'Brien, 74 Mo. 550. (2) It is now too late for appellant to urge that the information is duplicitous. This objection should have been presented to the trial court by demurrer or motion to quash the information, or by motion to elect. Duplicity in an indictment is cured by verdict. State v. Flynn, 258 Mo. 219; State v. Nieuhaus, 217 Mo. 345; State v. Davis, 237 Mo. 239; State v. Fox, 148 Mo. 524; State v. Blakely, 184 Mo. 187.

WILLIAMS, C. Roy, C., concurs.

OPINION

WILLIAMS, C.

Upon an information charging him with a violation of section 8315, Revised Statutes 1909 (practicing medicine, etc., without a license), defendant was tried in the circuit court of Warren County, found guilty and his punishment assessed at a fine of fifty dollars. From that judgment defendant duly appealed to the St. Louis Court of Appeals where the judgment was affirmed.

The case was duly certified and transferred here by order of the St. Louis Court of Appeals because one of the judges thereof deemed the decision to be contrary to the decision in State v. Carson, 231 Mo. 1, 132 S.W. 587.

Because of the absence of a bill of exceptions our review is confined to the record proper.

I. Section 8315, Revised Statutes 1909, is as follows:

"Any person practicing medicine or surgery in this State, and any person attempting to treat the sick or others afflicted with bodily or mental infirmities, and any person representing or advertising himself by any means or through any medium whatsoever, or in any manner whatsoever, so as to indicate that he is authorized to or does practice medicine or surgery in this State, 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, as provided in this article, or after the revocation of such license by the State Board of Health, as provided in this article, shall be deemed guilty of a misdemeanor, and punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for a period of not less than thirty days nor more than one year, or by both such fine and imprisonment for each and every offense; and treating each patient shall be regarded as a separate offense. Any person filing or attempting to file as his own a license of another, or a forged affidavit of identification, shall be guilty of a felony, and, upon conviction thereof, shall be subject to such fine and imprisonment as are made and provided by statutes of this State for the crime of forgery in the second degree. Said fines to be turned into the State Treasury when collected: Provided, that physicians registered on or prior to March 12, 1901, shall be regarded for every purpose herein as licentiates and registered physicians under the provisions of this article."

The information does not charge that defendant was "not a physician registered on or prior to March 12, 1901," and appellant contends that by reason of this omission the information is fatally defective.

We are unable to agree with this contention. The rule of law here applicable is correctly quoted and fully discussed in State v. Smith, 233 Mo. 242, 254, 135 S.W. 465, as follows:

"'When an exception is contained in a statute defining an offense and constitutes a part of the offense an indictment for such offense must negative the exception; but when the statute contains a proviso exempting a class therein referred to from the operation of the statute an indictment need not negative the proviso. The...