Whitlock v. Commonwealth

• Decision Date: 22 September 1892
• Parties: Whitlock v. Commonwealth.
• Court: Virginia Supreme Court

15 S.E. 893

89 Va. 337

Whitlock

v.Commonwealth.

Supreme Court of Appeals of Virginia.

Sept. 22, 1892.

Physician — Practicing without License — Indictment—Evidence — Instructions — Harmless Error.

1. An indictment which alleged that defendant did "practice medicine" sufficiently charges that he "practiced as a physician, " within the meaning of Acts 1883-84, p. 597, § 92, which makes it unlawful for any person to so practice without having a license.

2. Under Code, § 534, which provides that it shall be unlawful for any person, without a license, to engage in any business or profession for which a license is required, "either with or without compensation, on any agreement, express or implied, " it is immaterial that an indictment charging defendant with practicing as a physician without a license failed to allege that he did so for compensation.

3. In a prosecution for practicing as a physician without a license, it is admissible to show that defendant professionally treated a family other than that of the complaining witness, as charged, where such treatment was within one year of the indictment, and the place was within the jurisdiction of the court.

4. In a prosecution for practicing as a Physician without a license, under Acts 1883-84, p. 597, § 92, wherein the minimum fine imposed is $30, the court instructed the jury that the case was governed by Code, § 574, which provides that, if any person engages in any business or profession without a license when a license is required by law, "if no specific fine for so doing is prescribed, he shall pay a fine of not less than $30, " etc. Held that, as the section under which the indictment was found provides a fine for its violation, the instruction was erroneous; but, as the jury imposed the minimum fine, which is the same in both sections, the error was harmless.

Appeal from hustings court of Winchester.

One Whitlock was convicted of practicing as a physician without having a license therefor, and appeals. Affirmed.

Harrison & Bird, for plaintiff in error.

The Attorney General, for the Commonwealth.

Lewis, P. This was a prosecution against the plaintiff in error in the corporation court of the city of Winchester for a violation of the revenue laws. The indictment contains two counts. The first charges that the defendant, on the—— day of November, A. D. 1888, in the said city, and within the jurisdiction of the said court, did practice medicine, for compensation, in the family of G. W. Fletcher, without having obtained a license therefor, as required by law, against the form of the statute, etc. The second count is like the first, except that it omits the averment that the defendant practiced for compensation. The defendant demurred to the indictment, and to each count thereof, but the demurrer was overruled, and this ruling is the subject of the first assignment of error. It is contended that the demurrer ought to have been sustained, because the indictment does not follow the words of the statute in setting out the offense, and is uncertain and otherwise defective. The language of the statute is that no person shall practice as a.physician without a license, and the indictment charges that the defendant did practice medicine. We are of opinion, however, that the indictment substantially adheres to the words of the statute, and is sufficient. It is not always...