Citation Numbers: 38 A.2d 689, 132 N.J.L. 64
Judges: Perskib, Brogan, Donges, Perskie
Filed Date: 8/10/1944
Status: Precedential
Modified Date: 10/19/2024
Two questions require decision in this case. 1. Did the trial judge err in adjudging respondent guilty of practicing medicine without a license? 2. Should the trial judge have entered a judgment of $500 against respondent as a second offender instead of having entered a judgment of $200 against him, as a first offender?
Prosecutor filed a duly verified complaint in writing in the First District Court of Jersey City charging, in substance, that during the months of December, 1942, and January, 1943, respondent practiced medicine (R.S. 45:9-18) in the Town of Kearny, New Jersey, without first obtaining a license *Page 65
(R.S. 45:9-22, as amended by Pamph. L. 1939, ch.
Pursuant to the statute (R.S. 45:9-22) a warrant was issued stating the provisions of the law, as alleged in the complaint, to have been violated. Respondent was apprehended. He entered a plea of not guilty, furnished a bond, and was released for hearing.
The trial judge heard the case in a summary manner without a jury. R.S. 45:9-23. He determined on the proof adduced that respondent was guilty of violating R.S. 45:9-22 and accordingly entered a judgment in favor of prosecutor and against respondent in the sum of $200, the penalty for a first offense. Respondent tendered the sum of $200 and costs to the prosecutor who, we are told and it is not denied, refused to accept the same.
Prosecutor made application for a writ of certiorari to review the amount of the judgment on the ground that it should have been in the sum of $500, the penalty for a second offense. Respondent at the same time made application for a cross-writ to review the entire proceeding on the grounds that the proofs do not support the conviction, that respondent was entrapped, and that in all events there is no basis for *Page 66 prosecutor's claim that respondent was a second offender. By stipulation, the one writ allowed is to review the propriety of the judgment entered in light of the attacks made thereon by the respective parties.
1. Our answer to the first question posed is in the negative. Whether the proceedings employed be civil in character (StateBoard of Medical Examiners v. Giedroye,
2. Our answer to the second question is in the affirmative. By stipulation, respondent's conviction on May 28th, 1925, was incorporated in the record of the instant case. That *Page 67 conviction was based upon section 10 of the act of 1894 as amended by Pamph. L. 1915 and Pamph. L. 1921, supra, and as so amended was incorporated in the 1937 Revision of the public statute law of this state. Hence that conviction, on respondent's motion, was suppressed on the ground that it could not be considered another conviction within the meaning of R.S. 45:9-26, as amended by Pamph. L. 1939, supra, § 31, which, so far as is here pertinent, provides:
"In case a person shall, after conviction of any violation ofthis chapter, be again convicted of another violation thereof or of continuing the violation for which such offender was previously convicted, such offender shall be liable to a penalty of five hundred dollars for each such violation or continuation, to be sued for and recovered in the manner above set forth. * * *" (Italics supplied.)
We think that the trial judge fell into reversible error.
Beginning with the enactment of 1894, supra, our legislature provided a well defined and sound public policy in regulating the practice of medicine and surgery and in providing punishment for the violations thereof. The amendments of that act (Pamph. L.
1915, Pamph. L. 1921 and Pamph L. 1939, supra) indicate steadfast adherence to and perpetuation of that policy. By examples, and not by way of limitations, section 8 of the act of 1894 defines who shall be regarded as practicing medicine and surgery. Since the amendment of this section by Pamph. L. 1915,ch.
The cause will be remanded to the court below, there to be treated consistently with this opinion. No costs are allowed. *Page 69