State v. Kelsey

283 P.2d 982, 46 Wash. 2d 617, 1955 Wash. LEXIS 532

• Court: Washington Supreme Court
• Decided: May 19, 1955
• Docket: 32940
• Status: Published

Opinions

Ott, J.

This is an appeal from a judgment and sentence, based upon the verdict of a jury finding the appellant guilty upon ten counts of unlawfully practicing medicine and surgery without a valid, unrevoked certificate, and upon one count of holding himself out as a person authorized to practice medicine and surgery.

May 28, 1925, W. S. Kelsey made application for a license to practice drugless healing, as provided by Laws of 1919, chapter 36, p. 64 [cf. RCW, 18.36]. July 21, 1926, a license to practice drugless healing as a sanipractic was granted him by the department of licenses. The appellant, since 1926, has continuously practiced in Chelan, Washington.

By information filed March 17, 1954, the prosecuting attorney for Chelan county charged the appellant as above indicated. Upon the trial of the cause, the jury found the appellant guilty, and he has appealed from the judgment and sentence entered upon the verdict.

The appellant’s principal contention is that, since he was licensed to practice as a sanipractic, the manner in which he carried on his business was within the scope of his license and hence not unlawful.

The statutes of the state of Washington provide:

RCW 18.71.010 [cf. Rem. Supp. 1947, § 10008]: “The practice of medicine and surgery consists of the use of drugs or medicinal preparations in or upon human beings, severing or penetrating the tissues of human beings, and the use of any and all other methods in the treatment of diseases, injuries, deformities, or other physical or mental conditions.”

RCW 18.71.020 [cf. Rem. Rev. Stat., § 10018]: “Any person who practices or attempts to practice, or holds himself out as practicing medicine and surgery without having a valid, unrevoked certificate . . . shall be guilty of a misdemeanor. ...”

RCW 18.71.030 [cf. Rem. Rev. Stat., § 10024]: “ . . . This chapter shall not be construed to apply ... to any drugless method of treating sick or afflicted, . . . nor to any person holding a license for any system of drugless practice.”

Drugless healing is defined as:

“ ‘Drugless therapeutics’ consists of hydrotherapy, dietetics, electrotherapy, radiography, sanitation, suggestion, mechanical and manual manipulation for the stimulation of physiological and psychological action to establish a normal condition of mind and body, but in no way includes the giving, prescribing, or recommending of pharmaceutic drugs and. poisons for internal use.” RCW 18.36.010 [cf. Rem. Rev. Stat., § 10123.]

The separate and co-ordinate systems of drugless practice :are‘ described as follows:

“ (1) Food science, the science of treating disease through the chemical action of foods, water, nonmedicinal herbs, roots, barks, and all natural food elements, other than pharmaceutic drugs and poisons, to bring about a normal condition of health.

“(2) Mechano-therapy, a system of therapeutics which enables the practitioner to know how to apply scientifically the mechanics of hydrotherapy, dietetics, circumstances, idea and manual manipulation for the stimulation of psycho and physiological action to establish a normal condition of the body.

“(3) Suggestive therapeutics, a system of healing which enables the practitioner to know how to offer suggestions that will cause the mind of the patient to overcome the disease of the body and bring mind and body into harmony, and both into harmony with environment.

“ (4) Physcultopathy, a system of healing which enables the practitioner to know the scientific effect of movements on the body, and how to direct a system of mechanical gymnastics that restore the diseased parts or functions to a normal condition.” RCW 18.36.020 [cf. Rem. Rev. Stat., § 10122],

The scope of the drugless healer’s license is as follows:

“(1) To practice mechanotherapy;

“ (2) To practice suggestive therapeutics;

“ (3) To practice food science;

“ (4) To practice physcultopathy;

“(5) To practice any other separate and coordinate system of drugless practice. Practitioners shall confine their practice to the subjects and systems represented by their licenses.” RCW 18.36.100 [cf. Rem. Rev. Stat., § 10114].

A drugless healer’s advertising is restricted as follows:

“On all cards, books, papers, signs, or other written or printed means of giving information to the public on any system of practice, the practitioner shall use after or below his name the proper term designating the special line of drugless practice in which he is engaged, and shall not use after his name the letters, ‘M. D.’ or Doctor of Médicine and Surgery, or ‘D. O.’ or Doctor of Osteopathy, or ‘D. C.’ or Doctor of Chiropractic.” RCW 18.36.120 [cf. Rem. Rev. Stat., § 10124.]

What is a drug? What is practicing medicine and surgery? What is the limit of a drugless healer’s license?

In State v. Lydon, 170 Wash. 354, 16 P. (2d) 848 (1932), we said:

(a) Drugless healing includes sanipractic, though not specifically named. (See, also, State v. Temby, 172 Wash. 131, 19 P. (2d) 661 (1933).)

(b) The practice of surgery means “to sever or penetrate the tissues of human beings.”

(c) “The appellant makes some further contention that his right to practice surgery arises by virtue of his right to practice mechanotherapy and mechanical manipulation. These terms mean simply a remedial treatment consisting of manipulating a part, or the whole, of the body, with the hand or by mechanical means. In plain English, they mean massage, manually or mechanically performed. They certainly do not include the practice of surgery in any form.”

In State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949), we held that drugless healers should be allowed to do only those acts included within the statutory definition. See, also, State v. Lydon, supra; Martin v. Department of Social Security, 12 Wn. (2d) 329, 121 P. (2d) 394 (1942); Carney v. Lydon, 36 Wn. (2d) 878, 220 P. (2d) 894, 224 P. (2d) 634 (1950).

In Kelly v. Carroll, 36 Wn. (2d) 482, 219 P. (2d) 79, 19 A. L. R. (2d) 1174 (1950), this court held:

(a) Drugless healers are not doctors and are prohibited from practicing medicine or surgery. See, also, State v. Karsunky, 197 Wash. 87, 84 P. (2d) 390 (1938).

(b) Drugless healers are licensed to use (1) heat and cold through the medium of water or electricity, (2) exercise or movement of the parts of the body, (3) manual or mechanical massage, (4) electric radiation or current, (5) diet, (6) mental suggestion. Their practice must be without the use of drugs.

(c) A drug is a substance that is used as a medicine for internal or external use in the treatment of disease. It embraces patent or proprietary remedies. Calling drugs domestic or family remedies does not rob them of their character as medicine.

It is quite clear that the legislature intended to give to those who qualified as medical doctors and surgeons an exclusive certificate to administer drugs and to sever tissues of the human body. It likewise determined that there is a field of healing science that can be accomplished without the use of medicines or the penetration of tissues. The legislature precisely provided that the law requiring a medical certificate would not apply to the field of drugless healing, because these practitioners would not be severing tissues of the human body and would not be using or prescribing medicine. Hence, it follows that when, in the judgment of a drugless healer, it is necessary for drugs to be used or prescribed, or tissues severed, to effect a cure for his patient, he must conclude that he cannot legally treat the patient within the limits of his license. At that point, the drugless healer’s authority ends, and to go further is entering into the exclusive field of practice reserved to qualified medical doctors and surgeons. State v. Lydon, supra; State v. Houck, supra; Kelly v. Carroll, supra.

, We find that appellant, W. S. Kelsey, in attending his patients named in counts 1, 2, 6, 7, 8, 9, 11, 12, 13, and 14 of the information, either severed tissues or used or prescribed drugs to effect a cure for the illness or disease of these patients. Hence, in each of these ten counts, he was unlawfully practicing medicine without a valid, unrevoked certificate and beyond the scope of his sanipractic license, as defined by the laws of the state of Washington.

The appellant next questions the sufficiency of the proof to warrant a conviction of the crime of “holding himself out” as a practitioner of medicine and surgery on January 8, 1954.

The proof offered by the state established the following facts:

(1) W. S. Kelsey was at his office on the day in question.

(2) On the window of his office facing the street, in large letters, was the sign “Dr. W. S. Kelsey.”

(3) February 19,1953, he advertised in a local newspaper as follows: “Dr. W. S. Kelsey wishes to announce that Dr. D. L. Miller of Portland has recently joined his staff.”

(4) W. S. Kelsey had previously practiced medicine and surgery, as proved in the charges referred to above.

(5) It was established by a local druggist that W. S. Kelsey had previously telephoned to him prescriptions for drugs to be delivered to his patients.

(6) On the day in question, W. S. Kelsey had drugs in his possession.

Appellant contends that there was no proof of an overt act by W. S. Kelsey of actually practicing medicine upon any patient on January 8, 1954, and hence the conviction upon count 15 cannot be sustained.

The legislature, by ROW 18.71.020, supra, provided that an attempt to practice medicine is a separate offense, as distinguished from the offense of one holding himself out to practice. One “holds himself out” as a practitioner of medicine when he leads others to believe that he can lawfully engage in such practice. Did the appellant lead persons to believe that he could legally practice medicine? The sign on the window and the newspaper advertising did not indicate that he was a drugless healer, as required by RCW 18.36.120, supra. The drugs found on the premises on the day in question are not supplies of a drugless healer. His previous conduct in prescribing drugs and performing services is proof which tends to establish an intent to practice. See State v. Hartwig, 45 Wn. (2d) 76, 79, 273 P. (2d) 482 (1954).

We hold that there was sufficient evidence to sustain the verdict of guilty on count 15.

Appellant further assigns as error the admission of the testimony of the witness Audrey Elgin concerning conversations with Mr. Miller, in the absence of the appellant.

Prior to the objection, the witness had testified that W. S. Kelsey left the room and that, in his absence, the following occurred:

“Q. Before you left there, was there any conversation between yourself and Mr. Miller with regard to your operation? A. Yes. Mr. Nielsen: Just a minute, I am going to move to strike the mention of the word ‘ “operation” ’. Q. Very we'll, with regard to the conduct performed there? A. Yes, I said, ‘What did he do?’ He said, ‘He didn’t do anything, but if it was me, I wouldn’t have done it.’ Mr. Nielsen: Your Honor, I am going to move to strike that. We have had an awful lot of testimony regarding Miller improperly, when it wasn’t in Kelsey’s presence, but that is going too far.”

The objection was that the statement was hearsay and not made in the presence of the appellant. The objection was not well taken. The evidence had established that Mr. Miller was an assistant to W. S. Kelsey and that the two had united for an illegal purpose, namely, to perform an operation when neither was qualified, under the law, so to do. In such an instance, the acts and admissions of one are admissible as against either of the accomplices in the crime. State v. McGonigle, 144 Wash. 252, 257, 258 Pac. 16 (1927).

Appellant next assigns as error an alleged improper comment on the evidence by the trial court. During the cross-examination of Mr. Miller, the prosecuting attorney objected to a question as being irrelevant. In answering the objection, the attorney for appellant stated that the testimony of the witness should not have much weight with the jury, as he intended “to show that he [Miller] doesn’t know what he is talking about in regard to this instrument.” The court then stated: “I wouldn’t say that is a proper conclusion. He knows what he is talking about and wants to be fair about it.”

The statement was not prejudicial error for two reasons. First, the court, in instruction No. 37, specifically instructed the jury that the law forbids the court to comment on the evidence, and stated:

“I further charge you that if I have said anything during the course of the trial, or if in ruling on motions or objections I have made any statement which appears to you to be a comment or opinion on the facts, or the weight or convincing effect of the testimony of any witness, . . . it is your duty to completely disregard it.”

The jury is presumed to have followed the court’s instructions. State v. Weekly, 41 Wn. (2d) 727, 729, 252 P. (2d) 246 (1952).

Second, the statement was made to counsel, not to the jury. At the time this statement was made by the court, counsel for appellant did not object to it, did not move to strike it, and did not ask that the jury be instructed to disregard it. He in no manner indicated to the court that he believed the statement to be prejudicial to his client. In the absence of a request for the court to withdraw the remark, or to caution the jurors against its possible influence upon them, appellant cannot now successfully claim error. State v. Bengson, 165 Wash. 612, 615, 5 P. (2d) 1040 (1931).

The appellant excepted to instruction No. 26, which defined the terms “drugs” or “medicinal preparation.” The evidence disclosed that, in each of the counts upon which the appellant was convicted, where the actual severing of tissues was not the main issue and where drugs or medicinal preparations were prescribed, the drugs used were medicinal preparations, as that term is defined and generally understood. If the substances prescribed, recommended, or used by the appellant for his patients were not drugs, as defined by law, he had every opportunity to present such proof to the jury. This defense he failed to establish.

Further, the questioned instruction No. 26 followed the legal definition of the terms, “drugs” or “medicinal preparations,” as approved by this court in Kelly v. Carroll, supra. The giving of the instruction was, therefore, proper.

We find no merit in appellant’s remaining assignments of error.

The judgment and sentence appealed from is affirmed.

Hamley, C. J., Schwellenbach, and Donworth, JJ., concur.