Witty v. State

• Decision Date: 27 January 1910
• Docket Number: No. 21,480.,21,480.
• Citation: 90 N.E. 627,173 Ind. 404
• Parties: WITTY v. STATE.
• Court: Indiana Supreme Court

173 Ind. 404

90 N.E. 627

WITTY

v.STATE.

No. 21,480.

Supreme Court of Indiana.

Jan. 27, 1910.

Appeal from Circuit Court, Knox County; Orlando H. Cobb, Judge.

Colonel E. Witty was convicted of practicing medicine without a license, and appeals. Affirmed.James S. Pritchett, W. A. Cullop, and George W. Shaw, for appellant. James Bingham, Atty. Gen., and D. F. Culbertson, Pros. Atty. (James L. Gavin, Frank E. Gavin, Paul G. Davis, A. G. Cavins, W. H. Thompson, and E. M. White, of counsel), for the State.

JORDAN, J.

Appellant, a resident of Knox county, Ind., was charged by affidavit with practicing medicine without a license, in violation of the statute of this state. The prosecution was commenced by the state in the city court of the city of Vincennes, and upon a trial the accused was found guilty, and a fine assessed against him. From the judgment of conviction in the city court he appealed to the Knox circuit court. In the latter court he unsuccessfully moved to quash the affidavit. There was a trial by jury upon the issues joined, and a verdict returned finding him guilty as charged, and a fine of $25 was assessed. Over appellant's motion for a new trial, assigning the statutory ground and also newly discovered evidence, judgment was rendered on the verdict. He appeals and the alleged errors upon which he relies for reversal are: First, overruling of motion to quash the affidavit; second, denying the motion for a new trial.

The affidavit upon which the appellant was convicted charges “that on October 14, 1908, in the county of Knox and state of Indiana, Colonel E. Witty did then and there unlawfully engage in the practice of medicine; he, the said Colonel E. Witty, not then and there having a license to practice medicine under the laws of the state of Indiana.” Section 8400, Burns' Ann. St. 1908, declares it to be “unlawful for any person to practice medicine, surgery or obstetrics in the state of Indiana without first obtaining a license to do so as hereinafter provided.” Section 8410 declares that: “Any person who shall practice medicine, surgery or obstetrics in this state without having a license duly issued as hereinafter provided, shall be deemed guilty of a misdemeanor, and on conviction shall be fined not less than twenty-five dollars ($25.) nor more than two hundred dollars ($200.).” Section 8409 declares what shall be regarded as engaging in the practice of medicine within the meaning of the provisions of the statute requiring a license to practice medicine, namely, “To open an office for such purpose or to announce to the public in any way, a readiness to practice medicine in any county of the state or to prescribe for, or to give surgical assistance, or to heal, cure or relieve, or to attempt to heal, cure or relieve those suffering from injury or deformity, or disease of mind or body, or to advertise, or to announce to the public in any manner a readiness or ability to heal, cure or relieve those who may be suffering from injury or deformity, or disease of mind or body, shall be to engage in the practice of medicine within the meaning of this act: Provided, that nothing in this act shall be construed to apply to or limit in any manner the manufacture, advertisement or sale of proprietary medicines. It shall also be regarded as practicing medicine within the meaning of this act, if any one shall use in connection with his or her name the words or letters, ‘Dr.,’ ‘Doctor,’ ‘Professor,’ ‘M. D.,’ or ‘Healer,’ or any other title, word, letters or designation intending to imply or designate him or her as a practitioner of medicine or surgery in any of its branches: Provided, that this act shall not be construed to apply to nonitinerant opticians, who are at this time engaged in, or may hereafter engage in the practice of optometry in this state, nor to professional or other nurses. In charging any person in an affidavit, information or indictment with a violation of this law by practicing medicine, surgery or obstetrics without a license, it shall be sufficient to charge that he did, upon a certain day and in a certain county, engage in the practice of medicine, he not having any license to do so, without averringany further or more particular facts concerning the same.” It will be noted that this section declares what shall be regarded as sufficient in a pleading on the part of the state in a prosecution charging a person with a violation of the statute in question. Or in other words, the Legislature has declared that it shall be sufficient to charge that the accused person did, upon a certain day, in a certain county, engage in the practice of medicine, he not having a license to do so, without averring any further or particular facts concerning the same.

The particular objection urged against the affidavit by counsel for appellant is that it does not negative certain provisions found in section 8409, supra, which declare that the act is not applicable to the sale of proprietary medicines or to nonitinerant opticians, or to nurses, professional or otherwise. This objection cannot be sustained. These provisions in question are not found in that part of the statute defining the crime. They are in the nature of a defense, and need not be negatived by the state in its pleading, but in order to render them available to the accused person, he must interpose them as defense upon the trial of the cause. Ferner v. State, 151 Ind. 247, 51 N. E. 360;State v. Bridgewater, 171 Ind. 1, 85 N. E. 715. The affidavit in question fully complies with the requirement of section 8409, supra, and therefore must be held sufficient. The sufficiency of an affidavit similar to the one herein involved was sustained by this court, under this same provision of the statute, in Melville v. State, 89 N. E. 490. See, also, Parks v. State, 159 Ind. 211, 64 N. E. 862, 59 L. R. A. 190, and cases there cited. There was no error in overruling the motion to quash the affidavit.

The evidence in the case discloses that appellant had an advertisement inserted in the Vincennes Commercial, a newspaper of general circulation published in the city of Vincennes, Knox county, Ind. This advertisement was published for about a month as follows:

C. E. Witty, D. S. T.

Specialist in Chronic Diseases,

Is now located in our city.

Picture of Dr. C. E. Witty.

EVERY KNOWN DISEASE CURED WITHOUT MEDICINE OR SURGERY.

Dr. Witty is a regular graduate from the Weltmer Institute of Suggestive Therapeutics of Nevada, Mo., and successfully treats all forms of Chronic Diseases.

These are a few of the many diseases that yield readily to his drugless treatment: Insomnia, Neuralgia, Chronic Headache, Stomach or Kidney Trouble, Rheumatism, Constipation and all Female Complaints; Goitre, Paralysis, Heart Trouble, Deafness, Sore Eyes, Eczema, Cancer and Consumption in its first stage; Hernia, Hysteria, Locomotor Ataxia, Sexual Weakness, Asthma, Bronchitis, Hay Fever, Diarrhœa, Dysentery and Nervousness.

Dr. Witty comes highly recommended and he invites all sufferers to call and see him at 17 South Third Street.

Office Hours-1:30 to 5 p.m.

Consultation and Examination Free.

A Mr. Baldwin, a witness for the state, testified at the trial that the defendant (appellant herein) had treated him for rheumatism or lumbago. He testified that appellant claimed to belong to the school of Suggestive Therapeutics, and did not give medicine or claim to be a practicing physician; that he treated him only by rubbing his spine, groin, and back, and did not give him any medicine at all. The treatment was with the hands, and each treatment lasted from 20 to 30 minutes. He visited the office of the appellant, where there was a sign reading: “Dr. C. E. Witty.” This witness stated that he paid a certain fee for the treatment. He testified that the doctor told him that the mind had a great deal to do with the control of the body, and that it was beneficial to patients to get...