COUNTY COURT — ALBANY COUNTY.

January, 1919.

#### THE PEOPLE OF THE STATE OF NEW YORK v. GEORGE M. DEVINNY, Defendant.

(105 Misc. 555.)

Indictments—Demurrer to indictment^Charging crime oh practicing MEDICINE WITHOUT BEING REGISTERED—PUBLIC HEALTH IiAW, § 173.

An indictment charging defendant with the crime of practicing medicine without being registered need not negative the exceptions contained in section 173 of the Public Health Law.

Demurrer to indictment.

*H. D.*Alexander, *District*Attorney, and *John J. Conway, Assistant District*Attorney, for people.

*Andrew J.*Nellis, for defendant.

Addington, J.:

The defendant was indicted at the October, 1918, term of the Supreme Court, for the crime of practicing medicine without being registered, etc., it being alleged that on May 27, 1918, and for a considerable time immediately prior thereto, at Albany, in this county, he unlawfully practiced medicine. The indictment was duly transferred to the Albany County Court.

The defendant demurs to the indictment on the grounds:

First. That it does not state the facts constituting the crime; and,

Second. That it does not negative the exceptions contained in section 173 of article VIII of the Public Health Law, entitled “ Practice of Medicine.”

*263The defendant is not- charged with any specific act, but with the practice of medicine.

The court, in the case of Peoule v. Firth (157 App. Div. 492 at page 493), says: “It is a practice, not an act as distinguished therefrom, with which defendant is charged, and which the statute forbids. Practice results from a series of acts.” See also Fox v. Smith (197 N. Y. 527, revg. 123 App. Div. 369), on the dissenting opinion of Clarke, J. In the Firth case the court further says: “ As was said by the Supreme Court of Tennessee, in Payne v. State *(supra): ‘ “*Practicing,” in.respect of the subject in connection with which it is used, indicates the pursuit of a business.’ The specific acts resulting in a practice may or may not be unlawful in themselves. If they are unlawful, the offender may be prosecuted or punished separately therefor.” The court, in the case of People v. Ellis (162 App. Div. 288 at page 290), says: “ The different acts going to establish the unlawful practice need not be more particularly set forth in the information, as they simply made up one continuous offense.”

These cases are decisive of the first point raised by the defendant.

Section 160 of article VII, entitled “ Practice of Medicine,” of the Public Health Law, defines the meaning of the words used in the article. Subdivision 7 of said section says: “ Practice of medicine is defined as follows: A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat,” etc. There are a number of exceptions contained in section 173 of said article.

It is claimed by the defendant that the indictment is invalid in that it does not negative all these exceptions, which are referred to in the definition of the practice of medicine as defined in said article. There is a technical distinction made in various decisions between the words “ exception ” and “proviso.” *264The defendant claims that the exceptions contained in said section 173-, have the same force and effect as if they were incorporated in subdivision 7 of section 160, and that therefore it was incumbent upon the people to negative said exceptions. The rule seems to be that in the case of exceptions in the enacting clause, the same must be negatived in an indictment, but when they are in the nature of provisos it is a matter of defense- and need not be pleaded.

It is said in Rowell v. Janvrin (151 N. Y. 60 at page 67) “ An exception exempts something absolutely from the operation, of a statute by express words in the enacting clause; a proviso defeats its operation conditionally. An exception takes out of the statute something that otherwise would be part of the subject-matter of it: a proviso avoids them by way of defeasance or excuse.”

In the case of Harris v. White (81 N. Y. 532 at page 546), the court says: “ Where an exception is incorporated in the body of the clause of the statute, he who pleads- the clause ought to plead the exception. But when there is a clause for the benefit of the pleader, and afterward follows a proviso which is against him, he may plead the clause, and leave it to his adversary to show the proviso-. When the offence is brought within the enacting clause, and the justification comes in by way of proviso or exception, in the first case it is matter of defense to be shown by the defendant; in the other case the exception must be-negatived.” In this case the court further says (at p. 547) r *“*Where one party charges another with a culpable omission or breach of duty, he who makes the charge must prove it, though it involves a negative. There is an exception to this, when the-subject-matter of the negative and the means of proof thereof are peculiarly within the knowledge and power of him who claims to be within it; as is the case of a violation of the excise law.”

As was said by Judge Cullen, in the case of People v. *265Stedeker (175 N. Y. 57 at page 67, 17 N. Y. Crim. 326), the distinctions on the subject of negativing exceptions while “ vague and shadowy ” are important. This subject is very thoroughly discussed by the Court of Appeals in the Stedeker case, and several cases are therein cited and quoted. On this-point the people rely on the case of Fleming v. People (27 N. Y. 329). This case has been distinguished and cited with approval in many cases, and the rule cited in that case has been upheld. While the distinctions are not clear, and as Judge Cullen says, “ vague and shadowy,” the Fleming Case *(supra)*seems to be on all fours with the case at issue. In the Fleming-case the indictment was for bigamy, and in defining the crime exceptions were made, but were incorporated in the section following the one stating the crime. The same is true in this case. Subdivision 7 of section 160 defines the meaning of the-practice of medicine and makes exceptions which are incorporated in the later section of the same law, namely, 173. The court in the Fleming case held that the clause in the section referred to was in the nature of a proviso instead of an exception, and that it was incumbent upon the defendant, if he so-desired, to prove the circumstances which took his case without the statute.

For the reasons stated the demurrer is overruled.

Demurrer overruled.

NOTE ON ILLEGAL PRACTICE OF MEDICINE.

PUBLIC HEALTH LAW, SECTION 173.

( See notes, Vol. 25, p. 538, also Vol. 21, p. 236.)

A person who advertises under his trade name as “ The Standard Pharmacy Company ” to give a free medical examination, and employs a duly licensed physician for such purpose, and issues cards entitled, “ -Card for free examination. Medical and surgical office of The Standard Pharmacy *266■Company,” giving the address and directing the doctor to make examination and give medical advice to the bearer who is now using remedies of the company, and to make no charge to the holder of the card, but to charge the same to the company, and giving the office hours, may be deemed to hold himself out under his trade name as being able to diagnose and treat diseases and hence, may be convicted of practising medicine unlawfully, in violation of section 174 of the Public Health Law. (The People ex rel. Lederman v. Warden, 33 N. Y. Crim. 138.)

Defendant, a duly licensed physician, had been treating D. for three months for drug addication and examined him July 19, 1915, and on July 20 delivered heroin to his wife as a part of his treatment for her husband and entered the husband’s name in his book instead of the wife’s. *Held,*that the physician is not required to make a physical examination each time the drug is delivered. (People v. Hoyt, 34 N. Y. Crim. 70.)

A business corporation may not in its own name practice medicine, that is to say, administer medicine in treating diseases or physical conditions, ■even though it does so upon the advice or prescription of a licensed physician in each individual case. (Godfrey v. Medical Soc. of N. Y. County, 35 N. Y. Crim. 471.)

It is equally a violation of the Public Health Law for the manager or officer of a membership corporation, who is not a licensed physician, to practice medicine in the name of the corporation, as advertising an alleged cure for inebriety and administering remedies therefor to patients who come to such incorporated institution. (Id.)

For an officer of such corporation, not being a licensed physician, to advertise, prescribe and administer a so-called “ patent ” remedy for inebriety, of the ingredients and nature of which he is ignorant, is practising medicine in violation of the statute. (Id.)

A person who has no license to practice medicine, but, claiming to treat patients and cure diseases by means of the religious tenets of the Spiritualistic church, uses liniments and prescribes medicines for internal use, which are compounded and patented by himself, for which he receives pay, is not exempt from the statute (Public Health Law, Cons. Laws, ch. 45, -'§ 1'73), prohibiting the practice of medicine without a license, as one engaged in “the practice of religious tenets of any church.” While a healer inculcates the faith of his church as a method of healing he is immune, but when, as in this ease, he goes beyond that, puts his spiritual agencies aside and takes up the agencies of the flesh by the use of remedies ■operating physically, his immunity ceases, and a verdict convicting him *267of the illegal practice of medicine is sustained by the evidence. (People v. Vogelgesang, 36 N. Y. Crim. 43.)

In People v. Wilkes (1916) (163 N. Y. Supp. 659), it was held that this section was violated where the defendant, an individual, advertised to practice under the name “ Russian Medical Help.”

It was held in People v. City Prison (1915) (168 App. Div. 246), that a person who advertised under his trade name as “ The Standard Pharmacy Company” to give a free medical examination to persons using the company’s remedies, and employed a duly licensed physician for such purpose, was properly convicted of practising medicine unlawfully. See also Godfrey v. Medical Society of New York County (1917) (164 N. Y. Supp), where it was held that it was unlawful for a business corporation to conduct a liquor cure institute, though it administered the drugs in each case upon the advice of a physician.

One claiming to be a “ chiropractor,” who is not licensed to practice medicine in this State, or registered therein, and whose practice it is to diagnose various ailments and to treat the same, is properly convicted of unlawfully practising medicine. (People v. Ellis [1914], 162 App. Div. 288; People v. Mulford [1910], 140 App. Div. 716, affd. [1911], 202 N. Y, 624, mem. See also People v. Allcutt [1907], 117 App. Div. 546, 102 N. Y. 678, affd. [1908], 189 N. Y. 517.)

In World’s Dispensary Medical Ass’n v. Pierce (1911) (203 N. Y. 419, modifying 138 App. Div. 401), it appeared that one Ray V. Pierce, a physician, transferred to the plaintiff upon its incorporation his business of manufacturing and selling several proprietary remedies which were commonly known-as “Dr. Pierce’s Remedies,” and also as “Pierce’s Remedies.” The defendant advertised and sold certain proprietary remedies in boxes under the name of “ Dr. Pierce,” the name R. J. “Pierce” thereon being a fac-simile signature. The defendant was not a licensed physician, and therefore not entitled to practice under the law of the State. It was held that he should be enjoined from using the prefix “ Dr.” and the word “ Pierce ” or “ Pierce’s ” in advertising, labeling or selling his remedies unless said word was immediately preceded on the same line therewith by his proper Christian name, and his middle name or the initial letter thereof in letters identical in size, color, style of type and conspicuousness with those of said word, so that said word should not appear for any of the purposes aforesaid except when thus conjoined with the words “ Robert J.” or “ Robert,” followed .by the middle name of the defendant

*268It has been held that on a prosecution for practising medicine under am assumed name, or falsely personating another practitioner, where the-indictment charges the practice of medicine with a particular patient on a particular date under a false name, with no charge that the defendant habitually so practised, evidence of prior offenses is inadmissible. (People v. Dudenhausen [1909], 130 App. Div. 760, affd. [1909] 195 N. Y. 554.)

.It was held in New York County Medical Ass’n v. New York (1900) (32 Misc. Rep. 116), that the provision in the present section for the payment of fines to the medical society making the complaint was not passed in the interest of any particular medical society or association.

A member of the Christian Science church and one of its recognized practitioners, who assumes by silent -prayer and for a money consideration to practice healing, comes within the exception of the statute which excepts “ the practice of the religious tenets of any church.” It must appear, however, that he is in good faith practising the tenets of his church, and the question whether he is within the exceptions of the statute should be left to a jury as a question of fact. (People v. Cole [1916], 219 N. Y. 98, reversing 163 App. Div. 292, 31 N. Y. Crim. 487, 34 N. Y. Crim. 539. See Id.,25 N. Y. Crim. 350.)

One who has been commissioned as an officer in the medical reserve corps of the United States army is not serving in the United States army until called into active duty. He is not, therefore, within the saving clause of the present section, and not having been registered to practice medicine in this State, he cannot recover for medical services rendered by him. (Haverlin v. Englehardt [1916], 94 Misc. Rep. 154.)

It has been held that one licensed to practice osteopathy under the Public Health Law is a “regularly qualified physician” within the meaning of an insurance policy which requires the insured to be attended -by such a physician in order to recover for sick benefits. (Anderson v. National Casualty Co. [1912], 151 App. Div. 439.)

A licensed doctor of medicine cannot lawfully advertise himself as an osteopath without holding a license to practice osteopathy, but he may in his practice use any means which he deems expedient even if it involves the methods and practice of an osteopath. (Op. Atty-Gen. [1915], 388.)

The board of regents may refuse a license to a graduate of a foreign stock corporation, which, though maintaining a school of osteopathy in this State, has not been licensed to do business by the Secretary of State and is not recognized as a regularly organized school of osteopathy by the board of regents. (People v. Reid [1909], 135 App. Div. 89.)

*269The prohibition of the practice of medicine without a license has been held to be a valid exercise of the police power of the State. (People v. Mulford [1910], 140 App. Div. 716, 135 N. Y. Supp. 680, affd. [1911] 202 N. Y. 624, mem.)

Practising medicine, without the meaning of the present section, does not consist in merely administering drugs or the use of surgical instruments, but the term includes broadly the making of diagnosis and other recognized practice of physicians. (People v. Allcutt [1907], 117 App. Div. 546, 102 N. Y. Supp. 678, affd. [1907] 189 N. Y. 517, 81 N. E. 1171.) The court will not, however, apply any hard and fast rule in determining what acts constitute practice of medicine without authorization and registration contrary to the statute. (People v. Christian [1907], 122 App. Div. 824.)

A corporation is within the purview of the prohibition in the present section against the practice of medicine by *“*any person not registered as a physician.” (People v. John H. Woodbury Dermatological Institute [1908], 192 N. Y. 454, affg. 124 App. Div. 877; Op. Atty-Gen. [1909], 517.)

A physician who is not licensed and registered by the statute cannot recover compensation for professional services. (Acceta v. Zupa [1900], 54 App. Div. 33; Pox v. Dixon [1890], 58 Hun, 605, mem., 43 N. Y. St. Rep. 710.)