State v. Kelsey , 46 Wash. 2d 617 ( 1955 )

Finley, J.

(dissenting)—In enacting statutes (a) providing for the licensing of practitioners in the several branches of the healing arts, (b) prescribing the scope of professional practice of those licensed in the several branches, and (c) prohibiting practice of the healing arts by those not licensed, the legislature enacted separate and distinct statutes as to the licensing and the practice of medicine and surgery, and as to the licensing and the practice of drug-less healing or sanipractic. In decisions construing the statutes, little mention has been made of the fact, but there is, to say the least, some overlapping in terms of professional activity permitted medical practitioners and sanipractors. Food and body chemistry, the prescribing of diets, is one example. Violations of the aforementioned statutes are made punishable as a misdemeanor. As to such violations, in State v. how, 192 Wash. 631, 643, 74 P. (2d) 458, Steinert, C. J., pointed out:

“The crime charged is one that did not exist at common law, but is purely statutory. The state was therefore under the burden of proving beyond a reasonable doubt that appellant was operating within the prohibition of the statute. State v. Carey, 4 Wash. 424, 30 Pac. 729. The statute, being penal, is to be strictly construed. State v. Eberhart, 106 Wash. 222, 179 Pac. 853; State v. Hart, 136 Wash. 278, 239 Pac. 834; State v. Herr, 151 Wash. 623, 276 Pac. 870; State v. Diebold, 152 Wash. 68, 277 Pac. 394; 16 C. J. 1360, § 6.” (Italics mine.)

RCW 18.71.010 [cf. Rem. Supp. 1947 § 10008] provides:

“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] provides:

“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 18.36.010 [cf. Rem. Rev. Stat., § 10123] provides:

“ ‘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.” (Italics mine.)

Obviously, one purpose of the first two above-quoted statutes is to prevent those unauthorized from practicing medicine and surgery. The purpose of the last-quoted statute is to permit those authorized in the field to practice drugless healing. I have italicized a portion of the last-quoted statute. It should be carefully noted that the italicized portion contains the term pharmaceutic and the term internal. In other words, the prohibition expressed by the legislature is limited in two respects. It is concerned (a) with pharmaceutic drugs and poisons, and (b) with the internal use of same. Inferentially, nonpharmaceutic drugs and poisons, and noninternal use are not verboten.

The language of the aforementioned statutes is general rather than specific and detailed. The practice of medicine and surgery, on the one hand, and the practice of drugless healing, are not carefully and meticuously defined. This is significant to me because it presents a problem of interpretation for the courts as to the meaning of the language employed in the statutes by our state legislature; that is, a problem as to the intent and purpose of the legislature in enacting the statutes. As indicated above, the statutes are criminal in nature, and the applicable rule of statutory interpretation requires that the statutes be interpreted strictly. State v. Eberhart, 106 Wash. 222, 179 Pac. 853, State v. Diebold, 152 Wash. 68, 277 Pac. 394.

In the instant case, the trial court instructed the jury as to the law. The question to be decided by the jury was twofold in aspect—whether the activities charged against the defendant sanipractor (a) constituted the practice of medicine or surgery, and (b) whether such activities were authorized by the drugless healing statute or went beyond or were outside of the scope of professional practice permitted for sanipractors in this state.

Basically, the prosecution contended that the defendant (a) administered drugs or medicinal preparations to human beings, and (b) severed or penetrated the tissues of human beings. In other words, that the activity of the defendant constituted the practice of (a) medicine and (b) surgery without a license, in violation of the statutes. The defense contended to the contrary and, furthermore, contended that the activities of the defendant sanipractor were within the scope of those he was permitted to perform under the drug-less healing statute. Among other things, the defendant was charged with recommending, prescribing, and administering preparations, compounds, mineral, organic and chemical substances that are known and used as drugs. He was charged with severing and penetrating the tissues of human beings, in that he made rectal examinations of some patients, examined and manually manipulated and treated the female organs of other patients, and performed bladder irrigations. The trial court instructed the jury, and here on appeal we must remember and recognize the principle of law, that the charges against the defendant are not to be lumped together, but that each charge of illegal activity by the defendant must be tested separately against the applicable statutory provisions.

In this appeal, error is assigned to the trial court’s instruction No. 26, which reads as follows:

“You are instructed that the words ‘drugs’ or ‘medicinal preparation,’ as it is before you for consideration in this case, means any substance or preparation used in treating diseases and the term includes patent or proprietary remedies possessing or reputing to possess curative remedial properties sold and used for medicines, irrespective of whether they contain poisonous ingredients or may be purchased without any direction from a physician or can be obtained at retail stores generally.”

In commenting upon an instruction comparable to instruction No. 26, quoted above, Steinert, C. J., dissenting in State v. Low, supra, said:

“The court erred in giving the following instruction:

“ ‘The term “drug” shall include any substance or mixture of substances intended to be used for the cure, mitigation or prevention of disease of either man or other animals.’

“Rem. Rev. Stat., § 6145 [P. C. § 2536], defines drugs as follows:

“ ‘The term “drug,” as used in this act, shall include all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure, mitigation or prevention of disease of either man or other animals . . . ’ (Italics mine.)

“In its instruction, the court limited itself to that part of the statute which I have italicized. By so doing, and without making any qualifications, the court gave the jury to understand that any substances or mixture of substances used as a cure or prevention of disease was to be considered as a drug. Reverting to what has already been suggested, the word ‘drug’ would then equally apply to any article of food or drink, no matter how innocuous it might be. Under that interpretation, anyone who should treat disease by a food diet or any form of drugless healing would be guilty of practicing medicine. I do not believe that any such construction is tenable.”

'■ I am convinced that instruction No. 26 was too broad and inclusive in scope, and that the giving of it constituted prejudicial error.

Before concluding, I wish to make the observation in passing that, here on appeal and apparently in the trial court, the state argued that the insertion of a catheter for the purpose of bladder irrigation, and the insertion of a dilator for vaginal and rectal examination constituted “severing or penetrating the tissues of human beings,” in violation of the statutes. Such interpretation of the statutory language appears to me to be an extreme one. The legislative intent implicit in the words “severing or penetrating the tissues of human beings” prohibits the performance of surgery. In a sense, when either a catheter or a speculum is used in the manner indicated above, an opening in the human body is penetrated; but’this in itself, and without anything further, is not surgery as I see it—that is, severing or penetrating the tissues of human beings. In connection with the problem of statutory interpretation here involved, definitions of the term “penetration” pertinent to the legal concept of rape in the criminal law field are not particularly apt.

After hearing the testimony in this case, it might seem odd to a member of the jury, or for that matter to any layman, that defendant sanipractor Kelsey apparently examined and treated the female organs of most of the women patients involved in the criminal charges in this case. But the questions to be considered on this appeal are strictly legal ones, devoid of emotional or other overtones. Unquestionably, the state has a strong case, and upon a new trial the state again may prevail. However that may be, under our system of jurisprudence, every defendant is entitled to a fair trial and to the benefit of the presumption of innocence until guilt is established to the satisfaction of a jury beyond a reasonable doubt. Because of the views I have expressed regarding instruction No. 26,1 feel that, as the saying goes, the defendant did not have his day in court, that he is entitled to a new trial, and an opportunity to defend himself against the state’s charges, free from the adverse and prejudicial effects of instruction No. 26. The case should be reversed and remanded for the reasons and the purpose indicated hereinbefore.

August 4, 1955. Petition for rehearing denied.