that "no man or set of men are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services.” The proviso as to non-resident physicians is merely an exception to a restrictive or prohibitory statute, inserted through courtesy to sister states upon the assumption that they have made ample provision for the health of their citizens by similar legislation. Van Doran, 109-864.

This statute does not violate the fourteenth amendment of the constitution of the United States prohibiting any state from denying to any person the equal protection of the laws, since such amendment does not restrict the powers of the state when the statute applies equally to all persons in the same class, and the state is usually the judge of the classification. Call,

121-643.

The fact that the statute exempts from its requirements physicians already practicing in the state at the date of its passage does not make the statute invalid as creating a monopoly or conferring special privileges, since it is only the exercise of the police power to protect the public from impostors and incompetents. Call, 121-643.

The legislature has an unquestioned right to require an examination and certificate as to the competency of persons desiring to practice medicine or to exercise other callings affecting the public and requiring skill and proficiency. Call, 121-643.

INDICTMENT. An indictment using the disjunctive "or" by charging that defendant "did practice or attempt to practice medicine or surgery," is sufficient. Shepherd, J., dissenting. Van Doran, 109—.

It is not necessary that the indictment should state that the defendant ever prescribed for or practiced upon a particular patient. Van Doran, 109—. If indicted under section 5, chapter 181, laws of 1889, it is not necessary to allege that the defendant practiced for fee or reward, but if the indictment is under section 2, chapter 117, laws 1885, such allegation is necessary. Call, 121-643.

An indictment which does not charge that defendant did not register and obtain a certificate is defective. Call, 121–643.

The indictment need not charge that the defendant does not belong to one of certain classes which are withdrawn from the operation of the statute by a proviso. Call, 121-643.

The indictment need not allege that defendant practiced for fee or reward. Welch, 129-579.

It is sufficient to charge that the defendant willfully and unlawfully practiced or attempted to practice. Welch, 129–579.

A motion to quash on the ground that the bill does not allege that defendant failed to "register and obtain" license is properly overruled where the allegation is "not then and there having obtained from said clerk of the court a certificate of registration." Welch, 129–579.

NO CONFLICT.-Section 5, of chapter 181, laws of 1889, is not in conflict with and does not repeal section 2 of chapter 117, laws of 1885. Call, 121— 643.

GIVING ONLY PROPRIETARY MEDICINE.-One who holds himself out to the public as a physician, visits patients and diagnoses their diseases, and agrees upon a fee for his services, can not evade the law by proving that the medicine administered was a proprietary remedy prepared and sold by himself. Van Doran, 109-864.

SPECIAL VERDICT.-A special verdict which does not find that defendant practiced "for fee or reward" will not justify a conviction. Call, 121–643.

There was a special verdict finding that the defendant advertises himself as a non-medical physician, curing diseases by a system of drugless healing and treating patients by such system without medicine, claiming not to cure by faith, but by natural methods, without medicine or surgery; that he administers massage, baths and physical culture, manipulates the muscles, bones, spine and solar plexus, and kneads the muscles with the fingers, writes no prescription as to diet, but advises his patients what to eat and what not to eat, charges fees for his services, and does not claim exemption as a nurse, midwife, or as curing by prayer, and has no license: Held, that defendant is not guilty of practicing without license. Biggs, 133-729.

OSTEOPATHS-STATUTE DOES NOT APPLY TO.-An osteopath is not required to secure license to practice his profession. McKnight, 131-717.

[The practice of osteopathy is now regulated by statute. Laws 1907, c. 764. See also the title "Osteopathy."]

It can not be said that one "practices medicine and surgery" when he uses neither drugs, medicine nor surgery. McKnight, 131–717.

Sec. 806 (3647). Clerk registering physician illegally.

If any clerk of the superior court shall register, or issue a certificate to any person practicing medicine or surgery in any other manner than that prescribed by law, he shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than two hundred dollars, and shall be removed from office. 1889, c. 181, s. 6.

Sec. 807 (3646). Practicing without registering.

If any person shall practice or attempt to practice medicine or surgery in this state without first having registered and obtained his certificate from the clerk of the superior court as required by law, he shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars, or be imprisoned at the discretion of the court, for each and every offense: Provided, this section shall not apply to women pursuing the vocation of midwife, nor to reputable physicians or surgeons resident in a neighboring state coming into this state for consultation with a registered physician of this state.

1889, c. 181, s. 5.

PLEA OF NOT GUILTY.

A plea of not guilty disputes the credibility of the state's evidence, even when uncontradicted, since there is a presumption of innocence which can only be overcome by the verdict of a jury. Riley, 113-651.

Sec. 808 (3262). Prisoner mute, plea "not guilty" entered.

If any person, being arraigned upon or charged in any indictment for any crime, shall stand mute of malice or will not answer

directly to the indictment, the court shall order the plea of "not guilty" to be entered on behalf of such person; and the plea so entered shall have the same force and effect as if such person had pleaded the same.

Code, s. 1198; R. C., c. 35, s. 29; R. S., c. 35, s. 16.

PLEA ENTERED AFTER VERDICT.-The plea of "not guilty" may be entered under the direction of the court, even after verdict of guilty, where the omission is from mere inadvertence. McMillan, 68-440.

AFTER CONTINUANCE.-Where a case is continued in the absence of defendant, without any plea entered, he is entitled, on his arraignment at a subsequent term, to plead in abatement, or to enter any other plea open to him at the former term. Jackson, 82-565.

AMENDMENT OF RECORD.-The court has authority to amend the record by inserting the plea of not guilty after the verdict, when the omission to enter such plea at the proper time was through mere inadvertence of the clerk. Farrar, 104-702.

POISON.

Sec. 809 (3655). Selling poison without label.

If any person shall sell or deliver to any person any poisonous substance specified in section three thousand eight hundred and twenty-nine, or section three thousand nine hundred and seventy (a), without labeling the same and recording the delivery thereof in the manner prescribed in said section, he shall be guilty of a misdemeanor, and fined not less than twenty-five nor more than one hundred dollars.

1905, c. 108, s. 28.

Sec. 810 (3806). Cocaine, opium, morphine.

If any person shall sell by retail or give away any preparation containing more than thirty per cent of cocaine, morphine or opium, except upon the written prescription of a reputable practicing physician, veterinary surgeon or dentist licensed under the laws of the state, which said prescription shall not be refilled unless so directed by the attending physician, except in cases of emergency and in the absence of a physician, he shall be guilty of a misdemeanor, and shall be imprisoned not exceeding thirty days, or fined not exceeding fifty dollars. No veterinary surgeon shall be allowed to prescribe for a human being or to sell, give away, or in any manner dispose of the drugs mentioned in this section except for the use of dumb animals. The provisions of this section shall not apply to sales at wholesale by any manufacturer or

wholesale dealer who shall sell to retail druggists in original packages only.

1905, c. 85.

Sec. 811 (3829). Poisons; sale regulated.

If any person shall retail any poison enumerated in schedules A and B of this section, without distinctly labeling the bottle, box, vessel or paper in which said poison is contained, with the name of the article, the word "poison," a vignette representing a skull and bones, and the name and place of business of the seller; or if any person shall sell or deliver any poison enumerated in said schedules A and B, unless upon due inquiry it be found that the purchaser is aware of its poisonous nature, and represents that it is to be used for a legitimate purpose; or if any person shall sell any poison included in schedule A without, before delivering the same to the purchaser, causing an entry to be made in a book kept for for that purpose, stating the date of the sale, the name and address of the purchaser, the name and quantity of the poison sold, the purpose for which it is represented by the purchaser to be required, and the name of the dispenser, such book to be always open to proper authorities for inspection, he shall be guilty of a misdemeanor and be liable for all damages arising from such sale.

SCHEDULE A.

Arsenic and its preparations, corrosive sublimate, white precipitate, red precipitate, biniodide of mercury, cyanide of potassium, hydrocyanic acid, strychnine, and essential oil of bitter almonds.

SCHEDULE B.

Aconite, belladonna, colchicum, conium, nux vomica, henbane, savin, ergot, cotton root, cantharides, creosote, digitalis, and their pharmaceutical preparations, croton oil, chloroform, chloral hydrate, sulphate of zinc, carbolic acid, oxalic acid, opium and its preparations, except paregoric and other preparations of opium containing less than two grains to the ounce, and other deadly poisons. This section shall not apply to the dispensing of poison in usual doses and by physicians' prescriptions, nor to the sale of poisons by physicians in their actual practice, upon their own prescription; nor to the sale of such poisons by wholesale to pharmacists.

Code, ss. 3143, 3144; 1881, c. 355, ss. 9, 10.

INDICTMENT. An indictment for administering poison (strychnia) with intent to kill, which does not aver that defendant "well knew that said strychnia was a deadly poison," is fatally defective. Yarborough, 77–524.

ATTEMPT.-An attempt to procure the miscarriage of a pregnant woman by administering a poisonous drug, is a misdemeanor at common law. Slagle, 82-653.

ARREST OF JUDGMENT.-Defendant was convicted in the inferior court upon an indictment marked "a true bill;" but before judgment she moved, on affidavits of the foreman of the grand jury, that no such bill had been acted on by the grand jury or returned by them, to correct the record so as to show that no indictment had, in fact, been found. The court denied the motion because not made in apt time; defendant then moved to arrest the judgment which was also denied, and judgment being pronounced, she appealed to the superior court, which arrested judgment: Held, that while the inferior court properly refused to arrest the judgment, it erred in not entertaining the motion to amend. The superior court erred in arresting the judgment; it should have reversed the judgment of the inferior court in denying the motion to amend, and remanded the case. Harrison, 104-728.

NOT NECESSARY THAT DEFENDANT KNEW OF POISON.-On indictment for attempting to poison by placing phosphorus and a deadly poison unknown in a coffee pot it is not necessary to allege that the defendant had knowledge of the deadly character of the alleged poisonous substance. Utley, 126-997.

POISONOUS SHRUBS.

Sec. 812 (3318). Poisoning with shrubs.

If any person shall throw into or leave exposed in any public square, street, lane, alley, or open lot in any city, town or village, or in any public road, any mock orange or other poisonous shrub, plant, tree or vegetable, he shall be liable in damages to any person injured thereby and shall also be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned, at the discretion of the court.

1887, c. 338.

POLLING THE JURY.

It is no ground for vacating the verdict, or aresting judgment, that one of the jurors answered that, being forced by the laws of his country, he was bound to say the defendant was guilty, since such expression simply shows the reluctance with which the juror yielded to an imperious but painful duty. Swink, 19 (2 D. & B.), 9.

On polling the jury one juror said "that when he first went out he was not for finding the prisoner guilty, but a majority of the jury was against him, and that he then agreed to the verdict of guilty," and on being asked what his verdict is now, he replied, "I find the prisoner guilty": Held, that it was proper to receive the verdict. Godwin, 27 (5 Ired.), 401.

Where, on polling the jury, a juror responds, "I agreed to find him guilty of taking the money," it is error for the court to order a vedict of guilty of larceny to be entered. Overby, 127-514.

It is error for the court below, when informed by the jury in answer to his question, that some of them believed the defendant guilty and some not