Newman v. State

Appellant was charged in the County Court of Kendall County with unlawfully engaging in the practice of medicine without having first registered and filed for record the certificate required by law. A jury was waived, and the case submitted to the court, and as result of the trial appellant was fined the sum of $50 and condemned to suffer confinement in the county jail for one hour.

1. There are two questions raised in the appeal. One was that the complaint and information are insufficient in that they do not negative the exceptions set forth in section 10 of the Act in question. This was not necessary. It is only necessary to negative exceptions where they are contained in the enacting clause which defines the offense. It is not required to anticinate defenses arising under a general Act and negative them.

2. The other question relates to the sufficiency of the evidence to sustain the conviction, and involves a construction of the Acts of the Thirtieth Legislature, chapter 123, pp. 224 to 228, inclusive. The evidence shows that some time in 1908 appellant inserted in the local paper at Boerne the following advertisement:

"Prof. J.M. Newman, THE MASSEUR DOCTOR, Has Located in Boerne at the Boerne Hotel.

Room No. 21. Upstairs.

He is the doctor that cures consumption, appendicitis, as well as all other diseases. Now is your time to be healed. Come and see him while he is here."

Soon thereafter he undertook to treat a number of persons for sundry ailments, including warts, fever, kidney diseases and stammering. Testifying in his own behalf, appellant stated he was a doctor, and a great one; that he could cure the diseases that the M.D.'s could cure and the diseases that they could not cure; that he had treated and cured various patients of various ailments and received pay for his services in so doing; that he never used or prescribed medicine in treating his patients; that he only used the massage treatment; that he only rubbed patients for their ailments, and at no time pretended to be a physician or surgeon; that he did not practice medicine, but was opposed to the use of any medicine to effect cures. It was shown by the clerk that he had filed no license or authority to practice medicine.

In the recent case of Ex parte Collins, 57 Tex.Crim. Rep., 121 S.W. Rep., 501, we had occasion to consider the Act in question. We there held that the word "medicine," as used in the Constitution, embraced the art of healing by whatever scientific or supposedly scientific method; the art of preventing, curing or alleviating diseases, and remedying as far as possible results of violence and accident, and that it was broad enough to include any method that was supposed to possess curative power, and authorized the passage of the Act in question requiring physicians and surgeons, including osteopaths, to obtain a license before engaging in the practice of their profession. Section 13 of the Act in question provides that "Any person shall be regarded as practicing medicine within the meaning of this Act (1) who shall publicly profess to be a physician or surgeon and shall treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof. (2) Or who shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method or to effect cures thereof and charge therefor, directly or indirectly, money or other compensation." Section 10 of the Act provides that nothing in it shall be construed so as to discriminate against any particular school or system of medical practice, and that the Act shall not apply to dentists legally qualified and registered under the laws of this State who confine their practice strictly to dentistry; nor to nurses to practice only nursing; nor to masseurs, in their particular sphere of labor, who publicly represent themselves as such. A fair analysis of section 13 classifies the practitioner who shall be subject and amenable to the law; first, it includes anyone who shall publicly profess to be a physician, and claim to effect cures by any system or method, and, second, those who shall treat or offer to treat any disease by any system or method, or to effect cures thereof, and charge therefor. Evidently the words "system or method" were intended to be wide enough in their scope to reach any and every school of medicine, whether based on the administration of pills, potions or pellets, or the modern, as many persons believe, excellent system of osteopathy or massage. The history of legislation upon this subject in this State shows that heretofore the Legislature in dealing with the practice of medicine had attempted to classify the different branches and provide for boards for the different schools. Evidently the ineffectiveness of these laws was brought to public attention because it is certain that the Thirtieth Legislature, with a view of closing every avenue of escape on technical grounds, and for the protection of the public health, as well as individual citizens against the quack, faker and charlatan, undertook to provide that any person shall be regarded as a practitioner of medicine who professed for pay to cure any kind of disorder or injury by any system or by any method. The first statement in the advertisement put out by appellant characterizes him as a masseur doctor. He advertised himself to be the doctor, and to cure consumption, appendicitis, as well as all other diseases, and warns the public that now is your time to be healed. Pursuant to his invitation many people did call to see him to be healed of their troubles. Can it be said that this man was not holding himself out as a physician, as one who treated and cured diseases? Can it be said that he did not, in the sense that the Legislature understood this term and method or system of treatment, know he is not exempt on the mere ground that he does not use drugs and medicines or surgical instruments? In the case of People v. Allcutt, 81 N.E. Rep., 1171, in treating a somewhat similar statute, it is said: "That to confine the definition of the word ``practice medicine' to the mere administration of drugs or the use of surgical instruments, would be to eliminate the corner-stone of successful medical practice, namely, the diagnosis. It would rule out of the profession those great physicians whose work was confined to consultation; the diagnosticians who leave to others the details of practice. Section 146 of the public health law provides that persons desiring to practice must pass a Regent's examination made up of suitable questions for thorough examination in anatomy, physiology, hygiene, chemistry, surgery, obstetrics, pathology and diagnosis, and therapeutics, including practice and materia medica (and here we may say that this section corresponds with section 9 of our law). Diagnosis would, therefore, seem to be an integral part of both the study and practice of medicine so recognized by the law as well as common sense. The correct determination of what the trouble is must be the first step for the cure thereof. . . . It may be difficult by a precise definition to draw the line between where nursing ends and the practice of medicine begins, and the court should not attempt in construing this statute to lay down in any case a hard and fast rule on the subject." The court further says: "We are of opinion from the general current of the authorities throughout the country and from examination of the history and growth of our public health statutes that we should not apply the rule as laid down in Smith v. Lane, 24 Hun, 632. When we find as in this case a defendant holding himself out by sign and card as a doctor with office hours, who talks of his patients and gives treatments, who makes a diagnosis and prescribes diet, and conduct and remedies, simple though they may be, and who asserts the power to cure all diseases that any physician can cure without drugs and also diseases that they can not cure with drugs, and who takes payment for consultation wherein there was an examination and a determination of the trouble, that is, a diagnosis, as well as payment for subsequent treatment even if no drugs are administered, we must hold that he comes within the purview of the statute prohibiting the practice of medicine without being lawfully authorized and registered."

We think what we have said sufficiently disposes of the case. The appellant was undoubtedly guilty under all the proof, and the matters urged as a basis for reversal are, as we believe, without merit.

The judgment is affirmed.

Affirmed.

McCord, Judge, not sitting.

ON REHEARING. February 2, 1910.