Decided March 10, 1948.
Criminal law — Practicing medicine without certificate — Affidavit charging offense definite and certain — Section 1286, General Code — Municipal Court — Jurors selected from residents of city — Section 10, Article I, Constitution, not violated, when.
1. An affidavit charging the offense of practicing medicine or surgery without a certificate and detailing such offense by the incorporation of the definition of practice of medicine or surgery found in Section 1286, General Code, a part of which definition is properly omissible, is sufficiently definite and certain and is unambiguous, especially where it is stipulated that the offense charged is the illegal practice of medicine.
2. In a criminal prosecution in the Municipal Court of Columbus, the limiting of the selection of a jury from residents of the city, in conformity with Section 1558-66, General Code, is not violative of Section 10, Article I of the Ohio Constitution, which provides that an accused is, in any court, entitled to a jury from the county in which the offense is alleged to have been committed.
APPEAL: Court of Appeals for Franklin county.
Mr. Glenn Kemp, police prosecutor, for appellee.
Mr. Robert M. Draper, Mr. Eldon H. Young and Mr. Robert B. Gosline, for appellant.
The defendant, appellant herein, William Henning, was found guilty, by a jury in the Municipal Court of Columbus, of the offense of unlawfully practicing medicine and surgery without a license. The Common Pleas Court affirmed the judgment, and it is from the judgment of affirmance this appeal is prosecuted.
The first assignment of error is directed to the affidavit which charges that the defendant "did unlawfully practice medicine and surgery, before he had obtained a certificate from the State Medical Board of the state of Ohio, in the manner prescribed by law, to wit, that he, the said William Henning, did then and there examine or diagnose, prescribe, advise, recommend, administer and dispense for a fee or compensation to him paid direct or indirect by Mrs. Ruth Linn, a certain drug or medicine, appliance, application, operation or treatment for the cure or relief of a bodily injury, infirmity or disease of Mrs. Ruth Linn, to wit, female organs out of place * * *."
The defendant is contending that the affidavit is a blunderbuss affair which does not sufficiently set forth facts to enable the defendant to determine with what he is charged.
The record discloses that a motion was filed requesting a bill of particulars, which was later withdrawn and the following stipulation was made and agreed upon by counsel for the respective parties:
"1. The affidavit and information filed herein and upon which the prosecution of the defendant William Henning is based, is intended to and does charge the said defendant with the illegal practice of medicine as such, and not any branch or limited branch thereof, as the same are designated or differentiated in the General Code of Ohio. * * *"
We think that the affidavit is sufficiently definite and certain to inform the defendant of the charge. We find nothing ambiguous contained therein. All the elements constituting the offense charged are sufficiently set forth. It is apparent that some of the words used in the affidavit were copied from Section 1286, General Code, which words could properly have been omitted, but this fact alone does not invalidate the affidavit.
The stipulation sets forth further that the defendant is charged with the illegal practice of medicine, which is certainly clear and should have been understood by the defendant.
Before trial, a written challenge was filed to the array of the jury, which challenge the court overruled. It is stipulated in the record that the jurors were drawn from the jury wheel of the Municipal Court of Columbus in conformity with Section 1558-66, General Code, which section limits the members of the jury to residents of Columbus.
The defendant contends that this is not in accord with general law, as Section 13424-1, General Code, provides:
"In prosecutions before a magistrate, when imprisonment is a part of the punishment, if a trial by jury is demanded, the magistrate, not less than three days nor more than five days before the time fixed for trial, shall certify to the clerk of the Court of Common Pleas of the county that such prosecution is pending before him. Failure to demand a jury as in this section provided, shall be deemed a waiver of the same."
An examination discloses that that section became effective July 22, 1929, while Section 1558-66, General Code, became effective September 2, 1939. It is, therefore, apparent that the General Assembly intended to modify Section 13424-1, General Code, if it was ever applicable to the Municipal Court of Columbus, by the enactment of the later statute. The defendant urges that Section 1558-66 has application only to jury trial in civil cases and not to criminal cases. The statute does not provide this, for its says, "jurors in the Municipal Court shall be chosen and summoned as hereinafter provided * * *." It is apparent that that section refers to all jury trials in the Municipal Court and had the General Assembly meant otherwise it would have so stated.
The defendant contends further that, since the jurors were limited to residents of Columbus, Section 10, Article I of the Ohio Constitution, was violated.
That section provides:
"* * * In any trial, in any court, the party accused shall be allowed to appear and defend in person * * *, and to have * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *."
It was stipulated and agreed by counsel that the city of Columbus is in Franklin county, hence the jurors were from the county in which the alleged offense was committed. It is true the jurors were not selected from the entire county and they were limited to only residents of Columbus, but Section 10, Article I, does not proceed further and require the selection to be made from all the townships and municipalities of the county. We are of the opinion that there was no violation of that constitutional provision.
Another assignment of error is that the verdict is manifestly against the weight of the evidence and contrary to law. Briefly, the record discloses that a Mrs. Linn testified that she went to the defendant's office, suffering with a pain in her leg; that she was examined first by a Mr. Good in the defendant's office, after which she was in consultation with both the defendant and Good. The defendant then prescribed certain medicine for her, consisting of thyroid tablets, a box of capsules and several other different kinds of medicine. She was told also that her glands did not function properly, and oxygen was injected into her leg by means of a hypodermic needle. She said that Henning prescribed the medicine for her and she paid him $10 for the examination, and the medicine was $16. This money was paid to the defendant.
The defendant admits giving her the oxygen treatment; that all the office equipment belonged to him; and that all money received from patients was turned over to him. Defendant contends that he was not engaged in the practice of medicine as defined by Section 1286, General Code, which provides as follows:
"A person shall be regarded as practicing medicine, surgery or midwifery, within the meaning of this chapter who uses the words or letters, `Dr.,' `Doctor,' `Professor,' `M.D.,' `M.B.,' or any other title in connection with his name which in any way represents him as engaged in the practice of medicine, surgery or midwifery, in any of its branches, or who examines or diagnoses for a fee or compensation of any kind, or prescribes, advises, recommends, administers or dispenses for a fee or compensation of any kind, direct or indirect, a drug or medicine, appliance, application, operation or treatment of whatever nature for the cure or relief of a wound, fracture or bodily injury, infirmity or disease. The use of any such words, letters or titles in such connection or under such circumstances as to induce the belief that the person who uses them is engaged in the practice of medicine, surgery or midwifery, shall be prima facie evidence of the intent of such person to represent himself as engaged in the practice of medicine, surgery or midwifery."
The defendant contends that he was practicing naturopathy which is not medicine or any of its branches within the purview of Section 12694, General Code. We are not interested in what name or title the defendant gives his profession, but we are interested in whether what he did constituted the practice of medicine as defined by Section 1286, General Code. It was admitted that the defendant was not licensed by the state of Ohio. There is testimony in the record to the effect that he examined, prescribed and dispensed for a fee certain medicines, and that he gave a treatment by means of the oxygen needle. The defendant contends that what he gave to Mrs. Linn was neither a drug nor a medicine. Winston's Universal Reference Library defines medicine as being "any drug or remedy for the treatment and cure of disease."
Medicine, therefore, may not be only a drug but also a remedy. The statute may be violated by the dispensing of a remedy as well as a drug. On some of the state's exhibits received by Mrs. Linn at defendant's office, we find the warning, "To be used only by or on the advice of a doctor." On another we find, "Active ingredient thyroid. To be used only by or on the prescription of a physician. It is not safe to take thyroid except under the supervision of a physician."
We are, therefore, of the opinion that there was ample evidence in the record to support the verdict of the jury and it is not against the manifest weight of the evidence.
Another error assigned is that the court erred in rejecting evidence offered by the defendant by which he attempted to explain the difference between medicine and naturopathy. This evidence was properly rejected, we think, because as we stated previously we are not interested in what constitutes naturopathy, but only in what constitutes the practice of medicine. This testimony was properly rejected by the trial court.
A further objection was made to the following charge of the court to the jury:
"I further charge you as a matter of law, that it constitutes practicing medicine or surgery in the state of Ohio to do any or all of the following acts or things, before having obtained a license or certificate from the State Medical Board of Ohio, to wit: To use the words or letters `Dr.,' `Doctor,' `M.D.,' `M.B.,' or any other title in connection with one's name which in any way represents one as engaged in the practice of medicine or surgery in any of its branches."
The affidavit charges the defendant with practicing medicine. The quoted portion of the charge related to a separate offense of advertising. These are separate offenses. State v. Parrish, 27 N.P. (N.S.), 242. This charge was, therefore, improperly given. However, we are of the opinion that the defendant was not prejudiced by this charge, and the defendant was not thereby prevented from having a fair trial. See Section 13449-5, General Code.
We find no prejudicial error in the record, and the judgment is affirmed.
WISEMAN, P.J., concurs.
I dissent from the judgment for the reason that the charge against the defendant does not meet the requirements of the law, and the stipulation did not relieve the infirmity. There is no offense of illegal practice of medicine.
The prosecution should allege and be prepared to prove a specific offense. Here, the affidavit simply copies two-thirds of Section 1286, General Code, in terms, and charges the defendant with a violation of everything therein contained. Manifestly, the testimony supported no verdict of guilty of all those offenses.
There was no attempt to show that the articles which were given to the prosecuting witness to use by another than the defendant were drugs. Nor was defendant permitted to prove what they were. It may be said that it was not necessary for the prosecution to prove that a drug was administered, because the administration of medicine was sufficient, but the defendant was charged with both and found guilty of both.
The only treatment which it appears the defendant administered was that of injecting oxygen into the leg of the prosecuting witness and yet he is charged with diagnosing, prescribing, advising, recommending, administering and dispensing for fee or compensation a drug or medicine, appliance, application, operation or treatment for the cure or relief of a bodily injury, infirmity or disease.
The charge put too much of a burden on the defendant instead of placing it where it belonged, upon the state. Did the prosecuting witness suffer from bodily injury, infirmity or disease? Certainly she was not afflicted with all. Did the defendant prescribe, administer or dispense? Was that which he administered a drug or a medicine? Did he receive a fee or was it compensation? Was it paid to him directly or indirectly? The essential elements of the offense, which the state charged, should have been segregated and specified so that the defendant could have been put on notice as to what he would be required to meet. There was a general verdict of guilty and the defendant stands convicted of all of the things with which he was charged. Buck v. State, 1 Ohio St. 61. This could not be true under the evidence.
It would not be difficult to recognize that a murder indictment would be improperly drawn if it charged a defendant with killing another with deliberate and premeditated malice, by means of poison, and in perpetrating or attempting to perpetrate a rape, arson, robbery and burglary. Such an indictment would be comparable to the complaint upon which the defendant was required to go to trial here and upon which he was found guilty generally.