Witty v. The State
| Decision Date | 27 January 1910 |
| Docket Number | 21,480 |
| Parties | Witty v. The State of Indiana |
| Court | Indiana Supreme Court |
From Knox Circuit Court; Orlando H. Cobb, Judge.
Prosecution by The State of Indiana against Colonel E. Witty. From a judgment of conviction, defendant appeals.
Affirmed.
James S. Pritchett, W. A. Cullop and George W. Shaw, for appellant.
James Bingham, Attorney-General, Frank Culbertson, Prosecuting Attorney, A. G. Cavins, William H. Thompson, E. M. White Frank E. Gavin, James L. Gavin and Paul G. Davis, for the State.
Appellant, a resident of Knox county, Indiana, was charged by affidavit with practicing medicine without a license, in violation of a statute of this State. The prosecution was commenced in the city court of Vincennes, and upon a trial the accused was found guilty and a fine assessed against him. From the judgment of conviction 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, 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: (1) Overruling of motion to quash the affidavit; (2) 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 1908, Acts 1897, p. 255, § 1, declares it to be "unlawful for any person to practice medicine, surgery or obstetrics in this State without first obtaining a license so to do, as hereinafter provided." Section 8410 Burns 1908, Acts 1897, p. 255, § 9, declares that "any person who shall practice medicine, surgery or obstetrics in this State without having a license duly issued as hereinbefore provided, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than twenty-five dollars ($ 25) nor more than two hundred dollars ($ 200)." Section 8409 Burns 1908, Acts 1901, p. 475, § 3, 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:
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 § 8409, supra, which declare that the act is not applicable to the sale of proprietary medicines or to non-itinerant 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 defenses upon the trial of the cause. Ferner v. State (1898), 151 Ind. 247, 51 N.E. 360; State v. Bridgewater (1908), 171 Ind. 1, 85 N.E. 715.
The affidavit in question fully complies with the requirement of § 8409, supra, and therefore must be held sufficient. The sufficiency of an affidavit similar to the one here involved was sustained by this court under this same provision of the statute in Melville v. State (1909), ante, 352. See, also, Parks v. State (1902), 159 Ind. 211, 59 L.R.A. 190, 64 N.E. 862, and cases 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, Indiana. This advertisement was published for about a month and was as follows:
"C. E. WITTY, D. S. T. Specialist in Chronic Diseases. Is now located in our city.
Picture
KNOWN
DISEASE
of
CURED
WITHOUT
Dr. C. E. Witty.
MEDICINE
OR SURGERY.
Dr Witty is a regular graduate from the Weltmer Institute of Suggestive Therapeutics of Nevada, Missouri, 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, Diarrhoea, 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 appellant 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. The treatment was with the hands, and each treatment lasted from twenty to thirty 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 a patient to get that idea into his mind. He gave this patient no medicine, performed no operation, but just rubbed him with his hands and gave him mental suggestion. The witness admitted that he was greatly improved by the treatment, and believed that he was well. Another witness said that he called on Doctor Witty at his office in the city of Vincennes, Knox county, Indiana, and told him that he was afflicted with constipation. The doctor gave him one treatment for ten or fifteen minutes, by rubbing him up and down the back and upon the stomach, after removing his clothing. He paid the doctor $ 2 for the treatment. Another witness testified that his son had the earache, and at times he thought he was afflicted with appendicitis; that he telephoned to the office of the defendant in the city of Vincennes for him to come to his house; that he came and treated his boy by rubbing his spine, stomach...
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