State v. Henning , 83 Ohio App. 445 ( 1948 )

I dissent from the judgment for the reason that the charge against the defendant does not meet the requirements of the law, and the stipulation did not relieve the infirmity. There is no offense of illegal practice of medicine.

The prosecution should allege and be prepared to prove a specific offense. Here, the affidavit simply copies two-thirds of Section 1286, General Code, in terms, and charges the defendant with a violation of everything therein contained. Manifestly, the testimony supported no verdict of guilty of all those offenses.

There was no attempt to show that the articles which were given to the prosecuting witness to use by another than the defendant were drugs. Nor was defendant permitted to prove what they were. It may be said that it was not necessary for the prosecution to prove that a drug was administered, because the administration of medicine was sufficient, but the defendant was charged with both and found guilty of both.

The only treatment which it appears the defendant administered was that of injecting oxygen into the leg of the prosecuting witness and yet he is charged with diagnosing, prescribing, advising, recommending, administering and dispensing for fee or compensation a drug or medicine, appliance, application, operation or treatment for the cure or relief of a bodily injury, infirmity or disease.

The charge put too much of a burden on the defendant instead of placing it where it belonged, upon the state. Did the prosecuting witness suffer from bodily injury, infirmity or disease? Certainly she was not afflicted with all. Did the defendant prescribe, administer or dispense? Was that which he administered a drug or a medicine? Did he receive a fee or was it compensation? Was it paid to him directly or indirectly? The essential elements of the offense, which the state charged, should have been segregated and specified so that the defendant could have been put on notice as to what he would be required to meet. There was a general verdict of guilty and the defendant stands convicted of all of the things with which he was charged.Buck v. State, 1 Ohio St. 61. This could not be true under the evidence.

It would not be difficult to recognize that a murder indictment would be improperly drawn if it charged a defendant with killing another with deliberate and premeditated malice, by means of poison, and in perpetrating or attempting to perpetrate a rape, arson, robbery and burglary. Such an indictment would be comparable to the complaint upon which the defendant was required to go to trial here and upon which he was found guilty generally.