Opinion
June 25, 1925.
PHYSICIANS AND SURGEONS: Practice Without Authority — Defensive 1 Showing. A defendant who is indicted on the theory that he publicly professes to assume the duties incident to the practice of medicine and has no license from the state department of health authorizing him to so do, has a right to show that he has such license to practice osteopathy, and that his practice is not violative of the statute governing said latter profession.
PHYSICIANS AND SURGEONS: Practice Without Authority —
Prescriptions as Evidence.
PHYSICIANS AND SURGEONS: Practice Without Authority — Prescribing
Under Supervision of Physician.
PHYSICIANS AND SURGEONS: Practice Without Authority — Indictment
— Sufficiency.
Headnote 1: 30 Cyc. p. 1568. Headnote 2: 30 Cyc. p. 1568 (Anno.) Headnote 3: 30 Cyc. p. 1564. Headnote 4: 31 C.J. p. 706; 30 Cyc. p. 1565.
Appeal from Marion District Court. — W.S. COOPER, Judge.
THE defendant was charged by indictment with the offense of practicing medicine without having obtained and filed for record a certificate from the state board of medical examiners authorizing him so to do. From the judgment upon a verdict of guilty he appeals. — Reversed and remanded.
Johnson Shinn and David S. David, for appellant.
Ben J. Gibson, Attorney-general, Herbert A. Huff, Assistant Attorney-general, and Norman R. Hayes, County Attorney, for appellee.
There was testimony tending to show that the appellant examined persons who were sick, and prescribed and furnished medicines for them.
I. His principal complaint is that he was not permitted to show that he was a regularly licensed osteopathic physician. We think the complaint is well founded.
The statute in force prior to and at the time the indictment was returned, Section 15 of Chapter 77, Acts of the Thirty-ninth General Assembly, provided, in substance, that one licensed as an osteopathic physician or surgeon should not 1. PHYSICIANS prescribe or give internal curative medicines. AND See Section 2554, Code of 1924. If appellant SURGEONS: held a certificate, duly recorded, authorizing practice him to practice as an osteopathic physician, he without had an undoubted right to examine patients, to authority: diagnose their ailments, and to administer such defensive treatment as he was authorized by law to showing. administer; but he was not authorized to prescribe or give internal curative medicine. It follows that, if what he did in the way of diagnosis, treating patients, and prescribing and giving medicines, was no more than he was authorized to do as an osteopathic physician, he was guilty of no crime. But a license as an osteopathic physician would be no protection if he gave or prescribed internal curative medicine. See State v. Gibson, 199 Iowa 177.
II. The instructions to the jury were framed upon the theory that appellant had no right to give or prescribe medicine of any kind. Upon the introduction of evidence tending to show that appellant had a legal right to practice as an osteopathic physician, it is apparent that the jury should be instructed that he had a right to do all that the law permitted an osteopathic physician to do, and that he could only be convicted upon proof that he administered or prescribed internal curative medicine, or otherwise practiced the art of healing in a manner he was not authorized to do.
III. Error is assigned on the admission in evidence of certain prescriptions which the evidence tended to show 2. PHYSICIANS were signed by the appellant. The prescriptions AND do not appear in the record, and we are unable SURGEONS: to determine whether or not they were all given practice to patients for the purpose of having the without medicines called for by them used by the authority: patient. If they were merely in the nature of prescrip- orders for medicines to be kept and used as tions as required in the hospital where appellant was evidence. employed under a physician, they had no tendency to establish the charge against appellant, and should not have been admitted; but, if they were given to patients for the purpose of having the medicine prescribed taken, they were clearly admissible.
IV. There was evidence tending to show that medicine given to or prescribed for patients by appellant was so given or prescribed under the direction of Dr. Mater, a regularly licensed physician, by whom appellant was employed. The 3. PHYSICIANS court instructed that, if appellant did no more AND than to carry to patients medicine prescribed by SURGEONS: Dr. Mater, he could not be convicted; but that practice he had no right to prescribe any medicine, even without under the supervision of Dr. Mater. Again, if authority: appellant was authorized to practice as an prescribing osteopathic physician, he had a right to under prescribe such medicine as the law permitted him supervision to administer. But otherwise, the instruction of physi- was correct. It is only students who have had cian. not less than two courses of lectures in a medical college of good standing who are permitted to prescribe under the supervision of a preceptor. Section 2579, Code of 1897 (Section 2539, Code of 1924).
The fact that appellant prescribed or administered medicine under the direction of a duly licensed physician, if he had no right to do so at all or if he prescribed or administered medicine that he, as an osteopathic physician, was prohibited from prescribing or giving, would afford him no protection. State v. Paul, 56 Neb. 369 (76 N.W. 861); State v. Reed, 68 Ark. 331 (58 S.W. 40); State v. Young (Mo. App.), 215 S.W. 499.
V. The indictment was substantially in the language of the statute, Sections 2579, 2580, Code of 1897. It was not vulnerable to the criticism made of it.
Other errors are assigned. They are either without merit, or relate to situations not likely to occur upon 4. PHYSICIANS another trial. AND SURGEONS: For the reason pointed out, the judgment is practice reversed and the cause remanded. — Reversed and without remanded. authority: indictment: sufficiency.
FAVILLE, C.J., and STEVENS and De GRAFF, JJ., concur.