Commonwealth v. Campbell

Opinion by

Smith, J.,

The Act of May 18, 1893, P. L. 94, regulating the practice of medicine and surgery, requires the registration of the practictioner in the prothonotary’s office, in the county in which he wishes to practice, fixes the conditions that entitles him to registration, and forbids him to “ enter upon the practice of medicine or surgery within the state, unless he or she has complied with the provisions of this act.” • In the case before us, the defendant has been tried and sentenced for practicing without having complied with these provisions in the matter of registration.

The first question to be determined is whether the indictment charges a violation of the statute. The first count avers- that on January 18, 1902, in the county of Mercer, the defendant “ did unlawfully and wilfully engage in the practice of medicine and surgery without having complied with the provisions ” of the act of 1893, “in that he did not then and there exhibit to the prothonotary of the court of common pleas of the said county a license duly granted to him.” The second count avers that-the defendant “ did then and there engage in the practice of medicine and surgery, and did open an office and keep the same for the said practice of medicine and surgery, without first having caused himself to be duly registered as a regularly qualified physician and surgeon in the office of the prothonotary of the court of common pleas of said county.

The appellant’s contention is that the averment charging that he “ did engage ” in the practice of medicine and surgery fails to set forth a violation of the act of 1893, since that act forbids an unregistered person to “ enter upon ” the practice; that to enter upon the practice is to begin it, while to engage in the practice does not imply a beginning of it. In our view, however, there is no good reason for such a distinction. To enter upon a course of action is, unquestionably, to engage in it; and, in many instances, to engage in it is to begin it; as, to engage another in conversation, to engage in debate, to engage the enemy, to engage as surety, etc. As far as the import of the words is to be considered, the indictment charges the offense “substantially in the language of the act of assembly,” and.“so plainly that the offense charged may be easily understood by the jury,” and the defendant may know what he is to meet. More than this is not required. The gist of the offense is the practice of medicine and surgery by an unregistered, and hence, presumptively, an unqualified person. If an indictment will lie only for beginning such practice, the statute may be disregarded with impunity after the statute of limitations has closed on the initial offense. Moreover, there is no evidence that the defendant had entered upon or engaged in practice earlier than in the instances shown on the trial. His acquittal on the indictments charging him with unlawfully practicing previous to June 18, 1901, if it proves anything, proves that he had not then entered upon or engaged in practice.

The other reasons for quashing the indictment are equally without merit. The warrant was properly issued on the affidavit charging the offense upon information and belief. The addition of the affiant’s official character was mere surplus-age, and in noway affected the affidavit. Neither multifariousness or duplicity in the affidavit can be objected to; it is not required that an information should meet the requirements of an indictment; it is enough if it contains the essential elements of an offense, and it need not negative matters of defense arising from statutory exceptions. Aside from an ex' parte affidavit, there was nothing to impeach the correctness of the constable’s return. The witnesses before the grand jury were properly sworn, and the indorsement of their names on the indictment was regularly made.

The pleas of autrefois acquit were not sustained. The indictment sets forth an offense subsequent to the acquittal, and the evidence was confined to subsequent violations of the statute.

In the matters embraced in the tenth specification, the trial judge was clearly right. The duty of a jury is to give a verdict in accordance with the evidence and charge of the court, and not upon their own view of justice.

The rulings of the trial judge upon the offers of evidence, and in the answers to the defendant’s eighth point, and the charge as a whole, are so obviously correct that' discussion of them is unnecessary. Nothing in the assignment of error requires further discussion.

Judgment affirmed.