State v. Carson

132 S.W. 587, 231 Mo. 1, 1910 Mo. LEXIS 229

Opinion

GANTT, P. J.

The prosecuting attorney of Jackson county began this prosecution on November 19, 1906, by filing the following information in the criminal court of said county.

“Affidavit being filed according to law, now comes Isaac B. Kimbrell, prosecuting attorney for the State of Missouri, in and for the body of the county‘of Jackson, and informs the court that Charles H. Carson, on the-day of May, 1906, at the county of Jackson, State of Missouri, did then and there unlawfully practice medicine and surgery in the said State of Missouri, and did then and there attempt unlawfully to treat the sick and others afflicted with bodily and - mental infirmities, without first obtaining and having a license from the State Board of Health and without being then and there a physician registered according to law, against the peace and dignity of the State. ’ ’

The affidavit on which this information was based was made hy George Creel.

The defendant being arrested, filed his demurrer to the information, which was overruled, and he was then duly arraigned. A jury was waived and the cause tried to the court, and as will hereafter he noted, defendant was found guilty and his punishment assessed at a fine of five hundred dollars. For the reason that tlie defendant insisted in Ms prayer for instructions and declarations of law that his conviction under- the information and evidence would be in violation of the State and Federal Constitutions, and renewed these objections M his motion for new trial, this court has jurisdiction of this appeal.

When the information was filed the names of Dr. Adcock and George Creel were indorsed thereon as witnesses.

On the part of the state the testimony tended to prove that in July, 1906, the defendant treated a little boy- six years old, the child of Mrs. W.‘ H. Kemper, for a lame leg. When Mrs. Kemper was offered as a witness defendant objected on the ground that her name was not indorsed on the information, which objection the court overruled. On cross-examination, Mrs. Kemper testified she did not see Mr. Creel until the winter of 1907, long after the mformation was filed, when he came to her home to find out if Dr. Carson had treated the boy and how.

Dr. Adcock’s testimony tended to show that the defendant admitted to him he had treated a case of appendicitis. The patient had been brought to him from Kansas in October or November, 1906. To this evidence defendant duly objected and excepted on the ground it was a distinct offense from the one on which the state relied for conviction in this case and on which it had' elected to prosecute.

At the close of the state’s case the defendant requested the court to acquit him, on the grounds that the mformation did not individuate any offense and did not name any particular person whom the defendant had treated medically, basing his contention on the language of the act, “and treating each patient shall be regarded as a separate offense.”

After the court refused to acquit, the defendant offered in evidence a record kept in the office of the county clerk known as the “Roll of Physicians and Surgeons,” and especially that part of said roll-showing defendant was registered therein.

The defendant then read in evidence, after establishing the official character of the officer who issued it and after proving the genuineness of his signature and that the record was kept in the office of the county clerk, the following certificate:

PHYSICIAN’S CERTIFICATE.

Know all men by these presents, that C. H. Carson, a resident of Kansas City, in the county of Jackson and State of Missouri, has this day complied with the requirement of the law of the State of Missouri, entitled, An Act to regulate the practice of medicine and surgery in the State of Missouri; approved April 28, 1877; by filing a copy of a diploma sworn'to by him, duly issued to him on the 2nd day of June, 1879, by the American Health College of Cincinnati, which said college is located- in the city of Cincinnati, State of Ohio, and is duly established under and by virtue of the laws of the State of Ohio. Now therefore the said C. H. Carson is hereby authorized to practice the profession of medicine and surgery in the county of Jackson under and in accordance with the provisions of said act.

In testimony whereof I have hereunto set my hand and affixed the seal of the county court of said county at office in the city of Independence, this 15th day of May, 1880.

W. Z. Hickman, Clerk.

[seal] By B. G-. Wilson, Je., D. C.

I. The contention- of the State is that this court is restricted to a review of the record proper, for the reason it appears that the court, after finding defendant guilty, proceeded to impose its sentence before the defendant had filed his motion for a new trial, and as the statute provides in criminal cases the motion for a new trial and in arrest of judgment must be filed before sentence, the exceptions saved on the trial and attempted to be reviewed by the motion cannot be considered by this court. [Secs. 2689 and 2690, R. S. 1899.] In State v. Rosenblatt, 185 Mo. 114, it appeared the defendant withdrew his plea of not guilty and pleaded guilty and by agreement his punishment was assessed at imprisonment in the county jail for six months. Afterwards he filed his motion in arrest, and it was held too late, but as the indictment was a part of the record proper it was fully considered on his writ of error. Afterwards in State v. Pritchett, 219 Mo. 696, the jury found defendant guilty and assessed Ms punishment. “Whereupon the defendant was informed by the court that he had been convicted of murder in the second degree and his punishment assessed at ten years in the penitentiary, and the court asked him if he had any legal cause to show why judgment should not be pronounced against him according to law, and, the defendant failing 'to show such cause, judgment and sentence was passed upon him in accordance with the verdict.” Thereafter defendant filed his motion for new trial, and the question was whether it was not too late and whether he had not waived his right to file a motion for a new trial and it was ruled he had waived it. It will be observed that in Rosenblatt’s case, he pleaded guilty and his punishment was assessed by agreement and he was sentenced and he then filed Ms motion in arrest, and in Pritchett’s ease, he was expressly called upon by the court to show cause why the sentence should not be pronounced and he made no showing. In this case the record discloses that when the court came to pass upon the case, he announced his reasons for his verdict, and immediately, without giving counsel for defendant opportunity to file a motion for a. new trial, rendered his judgment, to which action of the court the defendant at the time by Ms counsel excepted and gave notice that he would file his motion for a new trial within the statutory time, and within the four days did in fact file his motion for a new trial. Thus an entirely different case, on the facts, is presented. It is obvious that there was no waiver of Ms right to file his motion, and that he could not have acted more promptly. If it is to be held that the right ■to review errors alleged to have been committed during the trial can be cut off by the court pronouncing the sentence before any opportunity is afforded to file a motion for a new trial, the statute affords no protection to a defendant against errors which may occur during the trial and will be a dead letter. As the de fendant promptly excepted to this action of the court and gave notice of his motion and filed it within the time allowed by positive statute, we think he did all that the law demanded at his hands and that he did not lose the benefit of his motion.

The failure of the court to set aside its sentence after counsel excepted and gave notice of his motion, was, we are convinced, an inadvertence, in view of its subsequent action in considering the motion, but to hold that such a failure requires the motion to be ignored would set a dangerous precedent, and one which the Legislature never intended. Accordingly, if necessary, the exceptions will be duly considered.

II. It appears that the defendant on the 15th day of May, 1880, filed a copy of his diploma from a medical colleg’e in the city of Cincinnati, sworn to by him, as required by the Act of the General Assembly of Missouri, approved April 28, 1877, and thereupon was duly registered on the roll of physicians and surgeons in the office of the clerk of the county court of Jackson county, and received a license, reciting these facts, under the-hand and seal of the county clerk.

The information was filed under the Act of 1901, Laws 1901, p. 208, which provided, in section 5 thereof, that: “Any person except physicians now registered, practicing’ medicine or surgery in this state, and any person attempting to treat the sick or others afflicted with bodily or mental infirmities without first obtaining a license from the State Board of Health, as provided in this act, shall be deemed guilty of a misdemeanor,” etc. It is conceded defendant has never received a license to practice medicine from the State Board of Health. So that the question is, was the defendant, by reason of his registration under the Act of 1877, “a physician now registered” within the meaning of the Act of 1901? The state insists he was not, the defendant that he was.

After the defendant was duly registered under the Act of 1877, the Legislature passed the Act of 1883, (Laws 1883, p. 115). This act provided that every person practicing medicine and surgery should possess the qualifications required by that act. If a graduate of medicine, he should present his diploma to the State Board of Health for verification as to its genuineness, and if -found genuine the board should issue him a license. If not a graduate, the person practicing medicine should present himself to the said board and submit himself to such examination as it might require, and if satisfactory the board should license him. This act expressly exempted students who might prescribe under the supervision of a preceptor, and did not apply to gratuitous services rendered in cases of emergency nor to .commissioned surgeons of the United States Army, Navy and Marine Hospital service. In a subsequent section it was provided, that the act should not apply to those that had been practicing medicine five years in this state prior to the enactment of that law. The learned criminal court held that a physician registered under the Act of 1874 was a registered physician within the meaning of the law of 1901, and a physician registered under the Act of 1877, five years before the Act of 1883 went into effect, would be registered within the purview of the law of 1901, but inasmuch as defendant was not registered until 1880', less than five years before 1883, he was not a registered physician within the meaning of the law of 1901. But an examination of the law of 1883 reveals that it contained no provision as to prior registration. It merely provided that five years’ practice should exempt a physician from its provisions requiring a license from the board of health. The construction which the state seeks to have us give the Act of 1901 would necessitate our amending the statute so that it would read: “Any person except physicians, now registered and qualified to practice under the Laws of 1883.” Defendant was not prosecuted for violation of the Act of 1883 while it was in force. That act was in turn repealed by the Act of 1901, and five years’ practice no longer afforded protection. Thus if a physician had practiced five years before 1883, but was not registered, he would clearly fall under the condemnation of the Act of 1901, because not registered. What effect then had the Act of 1901 upon the registration of defendant’s diploma and certificate in 1880. The diploma was registered under the law of 1877, and no subsequent act required or permitted it to be registered again. While it might or might not have protected him, from prosecution during the life of the Act of 1883, what was there to prevent the Legislature repealing the Act of 1883, as it did, and providing that his registration under the Act of 1877 should protect' him from prosecution and permit him to continue his practice? No act of the Legislature had revoked the license the state had granted him in 1880, and no tribunal authorized to revoke it had done so. Even if it should be said the Act of 1883 impliedly rendered his registration ineffective, it cannot be doubted that the Legislature could restore its efficacy by express provision as it did in 1901. We are unable to see any substantial reason why a physician registered under the Act of 1874 should be within the exception to the Act of 1901,' and one registered under the Act of 1877, under the broad language of the exception of the Act of 1901, does not also fall within the Act of 190Í. Certainly the defendant was a registered physician, and it was competent for the Legislature to make that registration authority to continue the practice even though no such right attached to it under the Act of 1883. The learned criminal court took the view that if defendant had practiced medicine five years prior to the enactment of the law of 1883, he would have been protected from this prosecution, as he would then have been a “registered physician’’ within the law of 1901, but the Act of 1901 makes no reference to an actual practice for any length of time, neither does it specify a registry-under. any particular act, either 1874, 1877 or 1883. It is clear that if defendant had practiced medicine five years before 1883 but was not registered under some law, he had no right to practice under the exception to the Act of 1901. The conclusion we have reached on this question is supported by the decision of the Kansas City Court of Appeals in State v. Morgan, 96 Mo. App. 343, l. c. 345-6, and by the St. Louis Court of Appeals in State v. Hellscher, 149 Mo. App. 230, in the first of which it was ruled that, owing to the saving clauses in the subsequent acts, the competency of a physician to practice medicine under the Act of 1874 had not been interfered with by subsequent'legislation, and in the latter of the two that the Act of 1907 applied only to those physicians who had not been licensed or registered as physicians prior to the Act of 1901, and that an information which failed to charge that the accused was a physician “not registered as such on or prior to March 12, 1901” was fatally defective. Our conclusion is that as defendant was concededly registered and licensed under the Act of 1877, he came squarely within the exception to the Act of 1901, as “a physician now registered,” and that no subsequent act of the Legislature has revoked the license given him under the Act of 1877, and therefore the first instruction of the court requiring him to have been also licensed by the board of health was erroneous.

Having reached this conclusion we deem it unnecessary to pass upon the numerous other questions so ably discussed by counsel on both sides as to the'sufficiency of the information and like questions. It is to be noted that defendant is charged in this information with the single offense of practicing without a license from the board of health and without being a physician registered according to law. He is not be fore us on a charge of misconduct which would have justified the State Board of Health in revoking his license. The facts were fully developed and there is no occasion for remanding the cause for a new trial.

The criminal court upon the admitted and established facts should have acquitted the defendant, and for refusal so to do its judgment is réversed and the defendant discharged.

Burgess and Kennisfo, JJ., concur.