Summary
In Com. v. Mollier, 122 Pa. Super. 373, 186 A. 757, the Superior Court held that chiropracty is comprehended in the "practice of medicine". So is osteopathy.
Summary of this case from Palmer et al. v. O'HaraOpinion
April 20, 1936.
July 10, 1936.
Physicians — Chiropractors — Practice of medicine — Chiropractic — Act of June 3, 1911, P.L. 639 — Title — Sufficiency — Constitutional law.
1. The Medical Practice Act of June 3, 1911, P.L. 639, with its supplements and amendments, is not in derogation of the constitutional rights of those who practice chiropractic.
2. The Act of 1911 is not unconstitutional on the ground that its title does not give notice to those engaged in chiropractic that they are interested or affected, so clearly and fully, so as to inform that they are bound thereby.
3. Chiropractic is comprehended in the expression "practice medicine."
Criminal law — Procedure — Verdict — Consistency — Acquittal on one count — Conviction on other count.
4. Judgment may be entered on a verdict of guilty on a count of an indictment, even though such verdict is inconsistent with an acquittal on another count in the same indictment.
5. Consistency in the verdict is not necessary; each count in an indictment is regarded as if it were a separate indictment.
Appeal, No. 139, Oct. T., 1936, by defendant, from sentence of Q.S., Montgomery Co., April Sessions, 1935, No. 69, in case of Commonwealth v. Merri Claude Mollier.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Judgment affirmed.
Indictment for practice of medicine or surgery without a license. Before KNIGHT, P.J.
Verdict of not guilty as to certain counts, and verdict of guilty as to one count and judgment and sentence thereon.
The facts are stated in the opinion of the lower court, by KNIGHT, P.J., as follows:
The defendant was convicted of practicing medicine, or surgery, without a license, in violation of the Act of June 3, 1911, P.L. 639, and its supplements. He now files this motion in arrest of judgment, assigning seven reasons in support thereof.
While it does not appear in the record, it is nevertheless a fact, that the defendant is a well known Chiropractor, who enjoys a large practice, in the Borough of Trappe.
The indictment contained six counts; the jury acquitted on five of the counts, but convicted on one, the fifth. It is now contended that the verdict of guilty, on the fifth count, is inconsistent with the verdicts of not guilty on the other counts.
A complete answer to this contention is to be found in the Pennsylvania cases of Mills v. Com., 13 Pa. 634, and Com. v. Kline, 107 Pa. Super. 594. In the latter case, our Superior Court approved the following language of Mr. Justice HOLMES, in Dunn v. U.S., 284 U.S. 390:
"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment: Latham v. The Queen, 5 Best Smith 635, 642, 643; Silvester v. U.S., 170 U.S. 262. . . . . . As was said in Steckler v. U.S. 7 F. (2nd) 59, 60: "The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret their acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through levity."
The only other reason, which in our opinion merits discussion, is the fifth, which is:
"The statute upon which the indictment generally is predicated is unconstitutional."
The Medical Practice Act of June 3, 1911, P.L. 639, with its supplements and amendments, is constitutional, and is not in derogation of the constitutional rights of those who practice Chiropractic. Com. v. Seibert, 262 Pa. 345; Com. v. Jobe, 91 Pa. Super. 110: Long v. Metzger, 301 Pa. 449.
The defendant attacks the constitutionality of the Act from a new angle, and argues that it is invalid because its title does not give notice to the defendant or to others engaged in the same profession, that they are interested or affected, so clearly and fully, as to inform that they are bound thereby. The title to the Medical Practice Act of 1911, as amended by the Act of 1913, P.L. 1220, reads as follows:
"Relating to the right to practice medicine and surgery in the Commonwealth of Pennsylvania; and providing a bureau of Medical Education and Licensure as a bureau of the Department of public instruction; and means and methods whereby the right to practice medicine and surgery and any of its branches may be obtained and exemption therefrom. . . . . ."
"The expression `practice of medicine' covers and embraces everything that by common understanding is included in the term healing art." Com. v. Seibert, 262 Pa. 345.
That the defendant is engaged in a healing art is plain from the evidence, and it is well known that Chiropractic aims to cure and alleviate disease and suffering. The Medical Practice Act would be worthless if the advocates of any branch of the healing art, by the simple expedient of calling themselves by some newly coined word, could escape the provisions of the Act, by contending that their particular cult or practice, was not mentioned in the title.
While the question of the title to the act was not specifically raised in the case of Long v. Metzger, supra, the present contention of the defendant is answered in the following language of the opinion:
"The basis of plaintiffs' argument that they are not subject to prosecution under the Act is the fact that Chiropractic is not named therein. It is, however, comprehended in the term `practice of medicine' as we have defined it."
Counsel relies upon the case of Martin v. Baldy, 249 Pa. 253, but the Court in Long v. Metzger, supra, takes the case out of the picture, in the following language, found on page 453 of the opinion:
"Martin v. Baldy 249 Pa. 253, relied upon by appellants to sustain their position that Chiropractors are not within the provisions of the Act of 1911 and its supplements is not, in point at all. What was held in that case was that the practice of Optometry, which is the employment of any means other than the use of drugs for the measurement of the powers of vision and the adaptation of lenses for the correction and aid thereof, is not the practice of medicine, as manifestly it is not."
Our appellate Courts have said time and again, that the practice of Chiropractic, without a license, is a violation of the Medical Practice Act of 1911 and its supplements. The defendant is a Chiropractor, and as long as the law remains as it is, he may not practice his profession without complying with its provisions.
And now: November 22nd, 1935, the motion in arrest of judgment is over-ruled, and the defendant directed to appear in Room "B", on Friday, December 6th, 1935, to receive the sentence of the Court.
Defendant appealed.
Error assigned, among others, was refusal of motion in arrest of judgment.
Cyril L. Weston, for appellant.
John E. Flynn, Assistant District Attorney, with him Frederick B. Smillie, District Attorney for appellee.
Argued April 20, 1936.
The judgment is affirmed on the opinion of President Judge KNIGHT of the court below. There was ample evidence to support the verdict.
Persons who desire to practice any branch of the healing art of medicine within this State, even though it does not embrace the administration of drugs, should, by this time, be able to understand that they cannot lawfully enter upon or engage in such practice until they have complied with the requirements of our statutes on the subject.
The judgment is affirmed and it is ordered that the defendant, Merri Claude Mollier, appear in the court below at such time as he may be there called and that he be committed by that court until he has complied with the sentence imposed upon him.