practitioner liable for a penalty imposed for practising without a license,1o attending a person for the purpose of restoring him to sound bodily health or mental condition constituting the treating of an ailment. But, where the design of the act regulating the practice of medicine is to protect the people of the state from the practice of medicine, however founded, without scientific knowledge, the practice of osteopathy, involving the use of neither drugs nor surgical instruments, is not regarded as the practice of medicine which would be unlawful if not duly licensed.12 And it is not an agency within the meaning of a statute forbidding the prescribing of any drug or medicine, or other agency for the treatment of disease, by an unlicensed person;13 though a practitioner of osteopathy is not permitted to prescribe or administer medicine or perform surgery.14 And it has been held that an act forbidding the practice of the healing art by massage or without medicine, except by doctors of medicine, is unconstitutional as creating a monopoly for the benefit of doctors of medicine.15

VI. PENAL LIABILITY FOR VIOLATION OF REGULATIONS. 458. General rules as to unlicensed practice.-Statutes regulating the practice of medicine, surgery, etc., usually provide for the imposition of penalties for violation of their provisions; and such provision, like the regulation itself, is a valid exercise of police power; and one

Hayden v. State, 81 Miss. 291, 95 Am. St. Rep. 471, 33 So. 653; State v. McKnight, 131 N. C. 717, 59 L. R. A. 187, 42 S. E. 580; Com. v. Thompson, 10 Pa. Dist. R. 634, 24 Pa. Co. Ct. 667; Queen v. Valleau, 3 Can. Crim. Cas. 435.

ternally or externally in the treatment of disease or the relief of sickness, and it need not necessarily be a substance which may be seen and handled, but may consist of electricity conveyed by instruments or by the human hand. Kansas City v. Baird, 92 Mo. App. 204. And a profession upon the part of a person that he practises bonesetting and reducing sprains, swellings, and contractions of the sinews by friction and fomentation, though he professes to practise no other department of the curing art, makes him one who practises physic or surgery within the meaning of 13 State v. Liffring, 61 Ohio St. 39, 46 a statute prohibiting the practice of L. R. A. 334, 76 Am. St. Rep. 358, 55 physic or surgery without a license. N. E. 168; Eastman v. State, 6 Ohio S. Hewitt v. Charier, 16 Pick. 353.

10 People use of State Bd. of Health v. Jones, 92 Ill. App. 445; Eastman v. People, 71 Ill. App. 236; Little v. State, 60 Neb. 749, 51 L. R. A. 717, 84 N. W. 248. "Little v. State, 60 Neb. 749, 51 L. R. A. 717, 84 N. W. 248; Kansas City v. Baird, 92 Mo. App. 204.

Nelson v. State Bd. of Health, 108 Ky. 769, 50 L. R. A. 383, 57 S. W. 501; VOL. III. MED. JUR.-28.

And a person practising osteopathy is entitled to a perpetual injunction against a board of health to restrain a threatened interference with his practice by prosecuting him under an act regulating the practice of medicine. Nelson v. State Bd. of Health, 108 Ky. 769, 50 L. R. A. 383, 57 S. W. 501.

& C. P. Dec. 296; State v. Herring (N. J. L.) 56 Atl. 670; Hayden v. State, 81 Miss. 291, 95 Am. St. Rep. 471, 33 So. 653.

"Nelson v. State Bd. of Health, 108 Ky. 769, 50 L. R. A. 383, 57 S. W. 501.

15 State v. Biggs, 133 N. C. 729, 64 L. R. A. 139, 98 Am. St. Rep. 731, 46 S. E. 401.

who practises in violation thereof is liable for the penalty prescribed;16 the offense falling within the legal or common-law notion of a crime or misdemeanor to which constitutional guaranties of the right to trial by jury apply.17 Practising without a license, within the meaning of these provisions, consists in holding one's self out to the public as a physician, and the person practised upon need not be shown.18 And the fact that a person was entitled to a license is no excuse where he had none.19 And an act authorizing a recovery for each and every violation thereof authorizes a recovery of cumulative penalties.20 Such statutes, however, being penal, are to be strictly construed;21 and a physician whose certificate has been revoked cannot be punished under a statute imposing penalties for practising without obtaining a license, where it is entirely silent as to any effect

Little v. State, 60 Neb. 749, 51 L. R. A. 717, 84 N. W. 248; Re Roe Chung, 9 N. M. 130, 49 Pac. 952; Bonham's Case, 8 Coke, 107.

And a justice of the peace entitled by law to hear actions for the recovery of $100 or less, and to impose imprisonment for the nonpayment of fines and costs at the rate of $1 per day until the days amount to the fine and costs, has jurisdiction to entertain an action to recover a penalty for a first offense, under a statute providing that any person practising medicine or surgery without the required certificate shall forfeit and pay $100 for the first offense, the same to be recovered in an action for debt before any court of competent jurisdiction. Re Roe Chung, 9 N. M. 130, 49 Pac. 952. "Ex parte Wong You Ting, 106 Cal. 296, 39 Pac. 627.

18 State v. Van Doran, 109 N. C. 864, 14 S. E. 32; State v. Martin, 23 R. I. 143. 49 Atl. 497.

19 State v. Mosher, 78 Iowa, 321, 43 N. W. 202; Kenedy v. Schultz, 6 Tex Civ. App. 461, 25 S. W. 667; Krowenstrot v. Stute, 15 Ohio C. C. 73.

In United States v. Williams, 5 Cranch, C. C. 62, Fed. Cas. No. 16,713, however, it was held that one who practises medicine without a license is not guilty under a statute prohibiting it, where there was no board of examiners de jure, the board not having been elected and continued according to law. And see also Bryant v. State, 1 How. (Miss.) 351.

And Robinson v. People, 23 Colo. 123, 46 Pac. 676, holds that one who possesses the specified qualifications may lawfully practise dentistry under a stat

utory provision that it shall be unlaw ful for any person to practise dentistry or receive a license therefor unless he possesses certain named qualifications, and the mere fact that he does not hold a license from the state board of examiners does not render him guilty of violating the provisions of the statute.

Suffolk County v. Shaw, 21 App. Div. 146, 47 N. Y. Supp. 349.

But the words "act or practise as an apothecary," in a statute imposing a penalty for so acting or practising without a certificate, are directed against an habitual or continuous course of conduct; and where a person acts by supplying medicines and giving advice to three different persons at different times, he is liable for but one penalty. Apothecaries Co. v. Jones [1893] 1 Q. B. 89, 67 L. T. N. S. 677, 41 Week. Rep. 267, 17 Cox, C. C. 588, 5 Reports, 101, 57 J. P. 56.

21 See Brooks v. State, 88 Ala. 122, 6 So. 902; Nelson v. State, 97 Ala. 79, 12 So. 421; Robinson v. People, 23 Colo. 123, 46 Pac. 676; Aldenhoven v. State, 42 Tex. Crim. Rep. 6, 56 S. W. 914.

A statute making it a misdemeanor to practise medicine without first having registered and obtained a certificate is not in conflict with, and does not repeal, a previous act making it a misdemeanor to practise medicine for fee or reward without first having obtained a license. State v. Call, 121 N. C. 643,

28 S. E. 517.

And a charge before a justice, of prac tising medicine without a license, is improper and insufficient, where the statute prohibits, under a penalty, all persons from practising medicine or sur

following revocation.22 A statute requiring physicians to report to the board of health contagious diseases which they are called upon to attend, and imposing a penalty for failure, is not intended to punish one for practising medicine, or for pretending to heal the sick by other means or through other process than the use of medicine.23 Whether or not an unlicensed person practised medicine is a question of fact in an action involving that issue.24

459. The information or indictment.-An information or indictment for violation of statutory provisions regulating the practice of medicine, surgery, etc., must allege all the acts going to constitute the of fense under the statute, as, that the practising was done without a diploma, or without a certificate of qualification, or without having previously practised the prescribed period; and that the accused resided or sojourned within the jurisdiction of the court.25 It is usually sufficient, however, to set forth the offense in the language of the statute, or in substantially equivalent terms;26 though, when the statute defines practice, the doing of the acts or things which constitute practising must be alleged.27 That the practice was done for a

gery as a profession without first being duly registered as a practitioner, since it is practising without being duly registered, and not without a license, which is prohibited; but, in the absence of objection, it will be assumed that it was properly explained to the jury that the offense was for a failure to register. Richardson v. State, 47 Ark. 562, 2 S. W. 187.

Williams v. People, 17 Ill. App. 274; Ex parte McNulty, 77 Cal. 164, 11 Am. St. Rep. 257, 19 Pac. 237.

204.

Kansas City v. Baird, 92 Mo. App.

"Thompson v. Staats, 15 Wend. 395. State v. Goldman, 44 Tex. 104; State v. Fussell, 45 Ark. 65; State v. Hathaway, 115 Mo. 36, 21 S. W. 1081; Denton v. State, 21 Neb. 446, 32 N. W. 222; Steuben County v. Wood, 24 App. Div. 442, 48 N. Y. Supp. 471; State v. Call, 121 N. C. 643, 28 S. E. 517; State v. Morrill, 7 Ohio S. & C. P. Dec. 52; Com. v. Campbell, 22 Pa. Super. Ct. 98; State v. Carey, 4 Wash. 424, 30 Pac. 729; Schaeffer v. State, 113 Wis. 595, 89 N. W. 481; Reg. v. Coulson, 24 Ont. Rep. 246. 1 Can. Crim. Cas. 114; Queen v. Whelan, 4 Can. Crim. Cas. 277.

But an information, under an act requiring that before any person engages in the practice of medicine in any of its branches or departments he shall

comply with certain provisions of the act, need not allege the particular branch or department of medicine in which he engaged; and it is supported by proof of engaging in the practice of medicine in any of its branches or departments. Antle v. State, 6 Tex. App. 202.

And it is not necessary in an information, under a statute making it a crime to practise medicine in the state without having first procured a certificate from certain medical societies, to allege the existence of such medical societies. People v. Boo Doo Hong, 122 Cal. 606, 55 Pac. 402.

Benham v. State, 116 Ind. 112, 18 N. E. 454; Parks v. State, 159 Ind. 211, 59 L. R. A. 190, 84 N. E. 862; Eastman v. State, 109 Ind. 278, 58 Am. Rep. 400, 10 N. E. 97; State v. Bair, 92 Iowa, 28, 60 N. W. 486; Com. v. Campbell, 22 Pa. Super. Ct. 98; Whitlock v. Com. 89 Va. 337, 15 S. E. 893. And see State v. Welch, 129 N. C. 579, 40 S. E. 120.

And an indictment is not insufficient because it does not follow the language of the statute, where it adequately charges the commission of the offense. State v. Flanagan, 25 R. I. 369, 55 Atl. 876.

"Dee v. State, 68 Miss. 601, 9 So. 356; O'Connor v. State, 46 Neb. 157, 64 N. W. 719.

fee or reward need not be alleged where the words "fee or reward" are not contained in the statute.28 Where the statute contains exceptions, an indictment for its violation need not allege that accused is not within the excepted class, where the exception merely withdraws a certain class from the operation of the prohibition, and is not contained in the enacting or prohibiting clause of the act, and is not descriptive of the offense; 29 though the rule is different, where the exception is descriptive of the offense, and is found in the prohibitory clause.30 And where offenses are local, it must be charged that the defendant resides or sojourns within the county or other district in which the breach is charged.31 An indictment is not bad for duplicity, where it charges the commission of several acts in one count, any or all of which constitute a crime under the statute.32 And an indictment for unlawfully practising medicine without a license covers all special instances occurring prior to the indictment, or presentation in the particular venue or county, going to sustain the main charge; and

State v. Welch, 129 N. C. 579, 40 S. E. 120; Whitlock v. Com. 89 Va. 337, 15 S. E. 893.

But the rule is different where the penal act expressly prohibits practising for a fee or reward. Derrick v. State, 34 Tex. Crim. Rep. 21, 28 S. W. 818.

And a special verdict upon an indictment under an act making it a misdemeanor for any person to practise medicine for fee or reward without a license, not finding that the defendant practised for fee or reward, will not justify a conviction. State v. Call, 121 N. C. 643, 28 S. E. 517.

And specific instances of practising and receiving payment by a physician, not stated in the indictment, are not admissible in evidence on the trial of a prosecution for practising medicine without a license. United States v. Williams, 5 Cranch, C. C. 62, Fed. Cas. No. 16,713.

Mayer v. State, 64 N. J. L. 323, 45 Atl. 624; Harding v. People, 10 Colo. 387, 15 Pac. 727; Hale v. State, 58 Ohio St. 676, 51 N. E. 154; Krowenstrot v. State, 15 Ohio C. C. 73; Williams v. People, 20 Ill. App. 92; Ferner v. State, 151 Ind. 247, 51 N. E. 360; People v. Allen, 122 Mich. 123, 80 N. W. 991; Sheldon v. Clark, 1 Johns. 513; State v. Call, 121 N. C. 643, 28 S. E. 517; State v. Welch, 129 N. C. 579, 40 S. E. 120; O'Connor v. State, 46 Neb. 157, 64 N. W. 719; State v. Flanagan, 25 R. I. 369, 55 Atl. 876; Logan v. State, 5 Tex. App. 306.

Mayer v. State, 64 N. J. L. 323, 45 Atl. 624; Williams v. People, 20 Ill. App. 92; McCann v. State, 40 Tex. Crim. Rep. 111, 48 S. W. 512; Steuben County v. Wood, 24 App. Div. 442, 48 N. Y. Supp. 471.

And an indictment charging the violation of a statute penalizing the engaging in the practice of dentistry without a license by certain classes of persons should aver that the accused was embraced in the class as to which the practice was made penal. Herring v. State, 114 Ga. 96, 39 S. E. 866.

"State v. Goldman, 44 Tex. 104. "State v. Ragland, 31 W. Va. 453, 7 S. E. 424; State v. Van Doran, 109 N. C. 864, 14 S. E. 32; Hale v. State, 58 Ohio St. 676, 51 N. E. 154.

And an allegation in the alternative that the defendant did practise or attempt to practise is not defective because of the use of the disjunctive instead of the word "and." State v. Van Doran, 109 N. C. 864, 14 S. E. 32.

And a charge of practising medicine without a certificate of professional qualification from an authorized board of medical examiners, and without hav ing a diploma from some accredited medical college, is not objectionable as requiring the physician to have a cer tificate of qualification from authorized medical examiners, and also a diploma, in order to free him from prosecution. Aldenhoven v. State, 42 Tex. Crim. Rep. 6, 56 S. W. 914.

the state cannot be compelled to elect upon which particular act of illegal practice it will proceed.33

A medical practitioner prosecuted for practising medicine without a license is entitled to prove matter legalizing such practice, under a plea of not guilty.34 And objection to the insufficiency of a complaint, on the ground that it states a mere legal conclusion, is properly made at the opening of the trial, where it is one not required to be raised by motion or demurrer by statute.35

460. Proof. The burden rests with the accused in a prosecution against a physician or surgeon for practising without a license to show that he was a registered or licensed physician, if he relies on such a justification.36 And the rule is the same in an action for the recovery of a penalty imposed for illegally practising.37 And the burden rests with the accused in a prosecution for prescribing, selling, or disposing of opium, morphin, or other poison, to show that he had conformed to precautionary requirements of law,38 or to show that he was within an exception to the statutory prohibition.39 Ordinary rules of evidence as to competency and admissibility are applicable.40 One or more of the prohibited acts must be affirmatively proved in a criminal prosecution to justify a conviction;11 though proof of a single act of unlicensed practice is sufficient to support a conviction, where the accused held himself out to the community as a physician.42

Payne v. State (Tenn.) 79 S. W. 1025.

"Smith v. State, 5 Tex. App. 318. Steuben County v. Wood, 24 App. Div. 442, 48 N. Y. Supp. 471.

Com. v. St. Pierre, 175 Mass. 48, 55 N. E. 482; Richardson v. State, 47 Ark. 562, 2 S. W. 187; People v. Boo Doo Hong, 122 Cal. 606, 55 Pac. 402; Williams v. People, 20 Ill. App. 92, Affirmed in 121 Ill. 84, 11 N. E. 881; Benham v. State, 116 Ind. 112, 18 N. E. 454; State v. Wilson, 62 Kan. 621, 52 L. R. A. 679, 64 Pac. 23; People v. Fulda, 52 Hun, 65, 4 N. Y. Supp. 945; People v. Rontey, 117 N. Y. 624, 22 N. E. 1128, Affirming 6 N. Y. Crim. Rep. 249, 4 N. Y. Supp. 235; People v. Nyce, 34 Hun, 298; Sheldon v. Clark, 1 Johns. 513; Raynor v. State, 62 Wis. 289, 22 N. W. 430; Apothecaries Co. v. Bentley, Ryan & M. 159, 1 Car. & P. 538.

that party. Williams v. People, 121 Ill. 84, 11 N. E. 881.

"Sheldon v. Clark, 1 Johns. 513; Suffolk County v. Shaw, 21 App. Div. 146, 47 N. Y. Supp. 349.

38 State v. Jones, 18 Or. 257, 22 Pac.

840.

State v. Ching Gang, 16 Nev. 62. And a physician cannot claim to be relieved from the penal provisions of a statute, on a charge of practising medicine without a license, under exceptions contained in the statute, unless he fully complies with the requirements of the proviso, in the way of producing evidence that he was within the exception. State v. Mosher, 78 Iowa. 321, 43 N. W. 202.

Aldenhoven v. State, 42 Tex. Crim. Rep. 6, 56, S. W. 914; Raynor v. State, 62 Wis. 289, 22 N. W. 430.

"State v. Carey, 4 Wash. 424, 30 Pac. 729.

Such cases fall within the general Antle v. State, 6 Tex. App. 202. rule that the subject-matter of a nega- And evidence of the issuing by a tive averment, lying peculiarly within physician of other prescriptions is not the knowledge of the other party, must admissible in a specific prosecution for be taken as true unless disproved by illegally issuing a prescription, where