Ex Parte Wideman

104 So. 440, 213 Ala. 170, 1925 Ala. LEXIS 241

• Court: Supreme Court of Alabama
• Decided: January 28, 1925
• Docket: 3 Div. 704.
• Status: Published

Opinions

The indictment contained two counts. The trial court overruled the demurrer of defendant to the first count; the Court of Appeals found no error in this ruling. This count alleged: "That the defendant did treat or offer to treat diseases of human beings without having obtained a certificate of qualification from the state board of medical examiners."

It fails to allege by what system of treatment the defendant did treat or offer to treat the diseases. It fails to allege that he did treat or did offer to treat diseases of human beings by a system of treatment. Was one or the other allegation necessary? Yes.

The statute makes it a misdemeanor for "any person who treats or offers to treat diseases of human beings in this state by any system of treatment, whatsoever, without having obtained a certificate of qualification from the state board of medical examiners." Section 7564, Code 1907, as amended by Acts 1915, p. 661.

The treatment, or offer to treat, must be by some system of treatment to make it a criminal offense under the statute. The count should have described all of the constituents or all of the ingredients of the offense in the statute to make it appear therein that the defendant was guilty thereof. This count should have named the system of treatment used, or proposed to be used, by the defendant in treating diseases of human beings, or it should have charged that the defendant did treat, or offer to treat, diseases of human beings by a system of treatment. It is obvious that every charge in this count in the indictment might be true, and yet the defendant would not have violated the statute.

He might have offered to treat, or treated, diseases of human beings, but did so by no system of treatment whatsoever. It must be by some system of treatment under the statute to make it a criminal offense. Sparrenberger v. State, 53 Ala. 481, 25 Am. Rep. 643; Ex parte Stollenwerck, 201 Ala. 392, 78 So. 454; section 7564, Code 1907, amended by Acts 1915, p. 661; section 5191, Code 1923.

This count in the indictment is insufficient, subject to the grounds of demurrer assigned to it, and the trial court erred in overruling them. The demurrers should have been sustained to this the first count in the indictment.

The petition for writ of certiorari to the Court of Appeals is granted, and its judgment is reversed, and remanded for further consideration in accordance with this opinion.

Writ awarded, reversed, and remanded.

ANDERSON, C. J., and SAYRE, SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.

GARDNER, J., dissents.