State v. Mueller

179 N.E. 503, 41 Ohio App. 102, 9 Ohio Law. Abs. 728, 1931 Ohio App. LEXIS 509

• Court: Ohio Court of Appeals
• Decided: April 6, 1931
• Docket: No 2525
• Status: Published

Opinion

WILLIAMS, J.

■ It is contended ,on behalf of the defendant in error Mueller that the' state can jiot prosecute error to this court from a judgment of the Court of Common Pleas reversing a judgment of conviction and discharging the defendant, and the case of Mick v State, 72 Oh St, 388, is relied upon. That cause was decided May 2, ljK)5. February 28, 1906 the General Assembly enacted S7367-A, R. S., 98 Ohio Laws, 33. This section was carried intd the General Code as §13764 GC and was re-enacted as §13459-14, GC. This same matter was before this court in the case of City of Toledo v Clara Allion, 16 Court of Appeals Opinions, Sixth District, unreported, p. 180, when the matr ter came up on application to settle a journal entry. The original opinion in that base is reported in City of Toledo'v Allion, 11 Oh Ap 1. The judgment was affirmed in Allion v City of Toledo, 99 Oh St, 416. The Supreme Court apparently did not consider this procedural question worthy of mention. We also call attention to State v Berry, 13 N. P., N. S., 206, and State v Blackmer, 35 Court of Appeals Opinions, Sixth District, unreported, p. 1.

The affidavit in the instant case charges:

“That on the 16th day of March, A. D. 1930, at the City of Toledo, in the County of Lucas and State of Ohio and within the jurisdiction of the court one K. T. Mueller unlawfully did advertise and announce himself to be a practitioner of medicine and surgery in one of its branches, to-wit, Chiropractic, before he had obtained a certificate from the State Medical Board of the State of Ohio in the manner required by law, to-wit: That he, the said K. T. Mueller did then, and there advertise and announce himself as such practitioner by having, exhibiting and displaying a certain sign on a door of the Spitzer Bldg., Room 447, in the City of Toledo, Lucas County, Ohio, a copy of which sign is as follows:

447.

K. R. Mueller — D. C. Ph. C.

Palmer Graduate — Chiropractor.

10 to 12 — 2 to 4.”

'Sec 12694, GC, makes it a misdemeanor for one to advertise or announce himself as a practitioner of medicine and surgery or any of its branches, beforq obtaining a certificate from the State Medical Board in the manner required by law. In the case of State v Blackmer, supra, we held that a person charged with a like offense could not be properly convicted where the evidence merely showed that the defendant’s name, followed by the word “Chiropractor” or the words “D. C.”, was displayed publicly, without any evidence to connect the defendant with the advertising or announcement. In the instant case the evidence shows that the accused was occupying the office in the City of Toledo at 447 Spitzer Bldg., on the day in question and that at that time the sign described in the charge was on the office door. This evidence, uncontradicted, with the further evidence that the defendant was unlicensed, warranted the trial judge in finding him guilty. Considerable damaging evidence, in nature of conversations with the defendant himself while in his office, was admitted in evidence but the trial judge later held it incompetent. These conversations, which were wholly competent, amounted to admissions on the part of the defendant that he was, at the time, engaged in the illegal practice of medicine. The defendant in error was properly convicted and the judgment of the Common Pleas Court will therefore be reversed and that of the Municipal Court affirmed.

RICHARDS, J, concurs. LLOYD, J, not participating.