People v. Touchberry

271 A.D.2d 816

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1946
• Status: Published

Opinion

Appeal from so much of an order of the Court of General Sessions of the County of New York, entered June 21, 1946, as granted, upon the minutes of the Grand Jury, defendants’ motion for a dismissal of the first count of an indictment as to all three defendants,,which first count charged said defendants with the crime of practicing medicine without lawful authorization.

Per Curiam.

We find that the testimony taken before the Grand Jury would

be sufficient to require trial of the issue as to whether there was appropriate supervision of the activities complained of by a duly licensed physician. We further find that the proof established prima facie, at least as to the defendant Touehberry, that she held herself out to be able to diagnose, treat or prescribe for a human disease, pain or physical condition, and thus practiced medicine without a license. As to the remaining defendants, who were subordinate employees, we find that the proof would be insufficient to justify a trial jury in convicting them of the crime charged, even though the testimony adduced was uncontradicted and unexplained, in that there was not sufficient proof that they knew that any treatments which they gave were in connection with activities that amounted to the practice of medicine.

The order, so far as appealed from, should be reversed insofar as it grants the motion to dismiss the indictment with respect to the first count as to the defendant Touehberry and the motion to dismiss the first count of the indictment as to said defendant denied. The order should be affirmed as to defendants Swenson and Arnold.

Martin, P. J., Dore, Cohn, Callahan and Peek, JJ., concur.

Order, so far as appealed from, unanimously reversed insofar as it grants the motion to dismiss the indictment with respect to the first count as to the defendant Touehberry and the motion to dismiss the first count of the indictment as to said defendant denied. Order, so far as appealed from, unanimously affirmed as to defendants Swenson and Arnold. Settle order on notice. [See post; p. 869.]