STATE vs. RAGLAND. SUPREME COURT OF APPEALS OF W. VA. Writ of Error to the Circuit Court of Boone county. Opinion by JOHNSON, President: SYLLABUS. 1. Sec. 14 of Chap. 150 of the Code prohibits an itinerant physician from practicing medicine, an itinerant vendor of drugs and from selling such drugs &c., or any one buy any drug, nostrum, &c., from treating diseases without first paying the special tax required by the section. 2. An indictment containing but one count which charges that therein, that the defendent did all of the things prohibited by the statute without paying the special tax required, is a good indictment. 3. On the trial of the issue on such an indictment, held, that proof that the defendant was an itinerant vendor of drugs, sustained the indictment and the general finding of guilty would not be set aside. State of West Virginia, VS. J. B. Ragland. OPINION. J. B. Ragland was on the 17th day of October, 1887 in the cir cuit court of Boone county, indicted as an itinerate physician and vendor of drugs, &c. The indictment is as follows: "The jurors of the State of West Virginia in and for the body of the County of Boone, and now attending the said court, upon their oath, present, that J. B. Ragland, on the first day of October, 1887, in the said county, was an itinerate physician and then and their publicly professed to treat diseases, injuries and deformities and he, the said J. B. Ragland then and there was an itinerant vendor of certain drugs, nostrums and ointments with which he, the said Ragland then and there publicly professed to cure and treat diseases, injuries and deformities and he, the said J. B. Ragland then and there to-wit; at the county aforesaid on the day and year aforesaid as such itinerant physician and as such vendor of such drugs, nostrums, ointments and patent medicines as aforesaid, did practice and attempt to sell such drugs, nostrums, ointments and patent medicines and did then and there practice his business as such vendor of said nostrums, drugs, patent medicines and did then and there practice and attempt to practice in said county without then and there having paid the special tax required by law, and without having filed with the clerk of the county court of said county a receipt of the sheriff of said county showing the payment of such tax, and without then and there having a license to act as such itinerate physician and vendor of patent medicine, drugs, ointments and nostrums against the peace and dignity of the State." The defendant demurred to the indictment which demurrer was overruled, and the defendant pleaded not guilty. The defenant waived a jury and the evidence was heard by the court in lieu of a jury, who after hearing the evidence found the defendant guilty, and assessed his fine at $100, thereupon the defendant moved the court to set aside the finding, and grant him a new trial because the finding was contrary to the law and evidence; the court overrulled the motion; the defendant then moved in arrest of judgment, which motion the court also overruled, and entered judgment against the defendant for $100 fine and, costs. The evidence is all certified, in the bill of exceptions to the refusal of the court to set aside the finding and grant a new trial. To the judgment the defendant obtained a writ of error. The first error assigned is overruling the demurrer to the indictment. The indictment above set forth was found under Sec. 14, Chap. 150, paga 915, of the code. The section is as follows: "Any itinerant physician, desiring to practice medicine in this State, or any itinerant vendor of any drug, nostrum, ointment or appliance of any kind, intended for the treatment of disease, or injuries, or who shall by writing or printing, or in any other method, publicly profess to cure or treat diseases, injuries or deformi ies, by any drug, nostrum, manipulation or other expedient, shall before doing so pay to the sheriff of every county in which he desires to practice, a special tax of fifty dollars for each month or fraction of a month he shall so practice in such county and take his receipt in duplicate therefor. He shall present said receipts to the clerk of the county court of such county, who shall file and preserve one of them in his office, and shall endorse on the other words 'a duplicate of this receipt has been filed in my office,' and sign the same; and if any such physician or vendor of patent medicines, shall practice or attempt to practice in any such County without having paid such tax and filed such receipt with the clerk of the county court, and obtained his endorsement on the other as aforesaid, or if he shall practice or attempt to practice for a longer time than that for which he has paid such tax as aforesaid, he shall be guilty of a misdemeanor, and shall be fined not less than one hundred nor more than five hundred dollars. Any person who shall travel from place to place, and by writing, printing or otherwise, publicly profess to treat or cure diseases, injuries or deformities, shall be held and deemed to be an itinerant physician, and subject to the taxes, fines and penalties prescribed in this section." This is a very crudely drawn statute. Its provisions are by no means clear; but we think we understand what was intended by the statute. It is clearly intended to prevent itinerent physicians from going from county to county in the State and practicing medicine without they should pay the heavy tax prescribed in each county, which undoubtedly was intended to prohibit such practice. It was also intended to prevent any one, whether a physician or not, from traveling from county to county vending drugs, nostrums, ointments or appliances of any kind intended for the treatment of diseases or injuries, unless the special tax were paid; or to prevent any one who should by writing or printing or in any other method publicly profess to cure or treat diseases injuries or deformities by any drug, nostrum, manipulation or other expedient from doing so until he should pay the special tax imposed. Therefore it seems the statute was intended to reach the itinerant physician, the itinerant vendor of drugs, &c., and any one, physician or not, who shall by writing or printing, or in any other method, publicly profess to cure or treat diseases, injuries and deformities by any drug, nostrum, manipulation or other expedient, and practiced what he professed to do. By this statute any one, and all persons are prohibited from doing anything mentioned therein or pertaining to either of the three classes, without first paying the special tax prescribed. This indictment in one count charges the defendant with doing all three of the things prohibited, without first paying the special tax. Can all these things be properly charged in one count? The plaintiff in error insists that they cannot be so charged in the same count, and that the count is fatally defective, and cites State vs. Gould, 26 W. Va., 258. That case is utterly unlike this. That was an indictment for cruelty to an animal. This is a revenue case, where the pleading is much more liberal to advance the remedy and prevent the evil. This is much more like an indictment for selling spirituous liquors, &c., without a license therefor. Section one of chapter thirty-two of the code, among other things, provides that "No person without a State license therefor shall sell, offer, or expose for sale, or solicit or receive orders for, or keep in his possession for another, spirituous liquors, wine, porter, ale or beer, or any drink of like nature." It is not doubted that if an indictment in a single count should charge that the defendant did all these things, the indictment would be good and the proof of his doing any one of them without the license to sell, would be sufficient to convict him; and if the proof was he did one or all of them, a State license to sell the spiritueus liquors, &c., would be a perfect defence, So here the special tax paid as requierd by Section fourteen of chapter 150 would authorize a person to do any or all of the three things mentioned in the section. If he does any one of them he is guilty, unless he has paid the special tax required. If the proof is that he did one or all of the things specified, if he can show that he has paid the special tax, and has complied with the requirements of the statute, he is protected. The count charging the defendant with doing all the three things is proper, and the count is good. It is the better way to make the charge; and then if the proof is he did either, the indictment is sustained. Does the evidence justify the finding of the jury? From the evidence, it appears that the defendant, on the 17th day of October, 1887, in Boone county, sold to one Whitt Allen a bottle of medicine known as "Ragland's Lightning Relief," for which Allen paid him fifty cents, that the defendant declared in a public address at the time of offering the said medicine for sale, that he did not come for the purpose of practicing medicine nor treating diseases, but represented the medicine to be his own preparation, good for and would cure certain diseases, if taken according to directions; among which was neuralgia, and that the medicine was patented. The bottle sold, with the wrapper, label and printed matter accompanying it was all given in evidence by the State, to which evidence the defendant objected, but the objection was overruled, and he excepted. In this evidence the medicine was highly recommended to cure certain diseases. Then it appears from the said printed matter with the bottle, that "the public are most respectfully referred to the following certificates from gentlemen well known in this city, who testify from actual experience to the efficacy of this most excellent and reliable preparation. Sold by all druggists and medicine dealers. Price fifty cents per bottle. Liberal discount to the trade. Prepared exclusively by Dr. J. B. Ragland, Louisville, Ky." Then follows a number of testimonials from persons in Mississippi, Tennessee, and Kentucky, telling of the wonderful cures effected by the medicine. The defendant, to maintain the issue on his part proved that he was not an itinerant physician, practicing or attempting to practice medicine in this State; that on the occasion of the bottle of medicine before mentioned, he publicly and distinctly announced. that he was not pretending to treat or cure diseases, nor in any many to practice medicine, but simply to introduce and sell his medicine, the same being his own preparation and being patent or proprietary medicine under the laws of the United States, and that he had on the occasion of such sale as well as all other occasion in offering the same for sale, annouced that he would not treat diseases in any manner whatever, and that the virtue of the remedy was in the medicine itself, and not in him, the defendant, that any one else could sell such medicines as well as he himself could. The court who tried the issue in the place of the jury found the defendant guilty and assessed a fine against him of $100. The court overruled the motion for a new trial and in arrest of judgment, and entered judgment for the fine and costs. The evidence of the printed matter on the bottle when sold was proper. From all the evidence the jury was certainly justified in finding the defendant an itinerant vendor of a drug. The finding was justified by the evidence, and the motion for a new trial was properly overruled. The indictment being good the motion in arrest of judgment was properly overruled. There is no error in the judgment and it is affirmed, |