### No. 14631 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

STATE OF MONTANA, Plaintiff and Respondent,

-vsBRUCE 

### R. BLINZLER, Defendant and Appellant.

Appeal from: District Court 

### of the Eleventh Judicial ~istrict, Honorable James M. 

### Salansky, Judge presiding. i 

### Counsel of Record: For Appellant: James D. Moore, Kalispell, Montana For Respondent: 

### Hon. Mike Greely,Attorney General, Helena,Montana Ted 0. 

### Lympus, County Attorney, Kalispell,Montana

Submitted on briefs: August 2, 1979

Filed:

## SE[ 

# "1973Mr. Justice John Conway Harrison delivered the Opinion of the Court. Appellant

### was convicted on two counts of practicing chiropractic without a license inviolation of section 37- 12-301, MCA, following a jury trial inthe DistrictCourt of theEleventh Judicial District, the Honorable James M. Salansky presiding. He was sentenced topay a fine of $200

on each count, and he appeals from thatjudgment. Appellant 

### is a naturopathic physician practicing in associationwith Kenneth L. Piller inKalispell, Montana, having come there from the State of Pennsylvania where he had practiced as

### a naturopathic and chiropractic physician for a period of some ten years. In 1977 Dr. Blinzler became interested inmoving toMontana and submitted an application for a Montana chiropractic license. Before coming to the statehe contacted Dr. Ronald R. Hoye, president of the National Association of Naturopathic Physicians and Stanley Crowe, a Boise attorneyrepresenting the national association, toinquire into the legal requirements topractice in the Stateof Montana. He was informed thatMontana had no requirement for the licensing relating tothe practice of naturopathy. After conferring with Dr. Hoye and Mr. Crowe inIdaho, appellant and Dr. Pillermoved toKalispell where they opened up a naturopathic clinic. Dr. Hoye advised him that upon coming toKalispell he should contact Dr. ~erlin Anderson, a Kalispell naturopathic physician who had practiced inthe area some 20 years. On December 20, 1977, informations 

### were filed against appellant, Bruce Blinzler, and his associate charging them with practicing medicine without a license and practicing chiropractic without a license, both 

### ~istrict Court misde-

### meanors. Appellant herein was charged with two counts of chiropractic and one count of medicine. He entered pleas of not guilty to these charges. Subsequently, the information

was amended onApril 

### 4, 1978,when three counts were added against appellant. Again, on July 21, 1978, the information

was amended and appellant ended up being charged with a total of seven counts of either practicing medicine or practicing chiropracticwithout a license. To all of these charges, appellant entered a plea of not guilty. Trial by jury followed. Prior to going to the jury, one count of practicing chiropracticwithout a licensewas dismissed. Appellant was acquitted of the four counts of practicing medicine and was found guilty on two counts of practicing chiropractic. From the verdict and judgment, appellant appeals. The issues presented for our consideration are: 1. Whether the statutesunder which appellant was prosecuted violate the due process clause and equal protection clause of the United States Constitution and the Montana Constitution? 2. 

### In the event the statutes are constitutional,was the evidence sufficient to support the convictions? 3. 

### Do the double jeopardy provisions of the United States and Montana Constitutions bar the convictions? The first issue before this Court is the question of whether the charges are specific enough to satisfy due process. We first note that the constitutional validity of the definition of "medicine"as set forth in section 37-3- I 

### 102r(a),MCA, is not before the Court in this case. Much of appellant's brief concerns the practice of medicine and the statutes controlling the same; however, in this case, appel-lantwas not convicted of unlawfully practicing medicine under the statuteinquestion. On those charges the jury returned 

### a verdict of acquittal, and there can be no prejudice shown inthis 

### case inthe operation of section 37-3- i 1027a), MCA. Appellant, therefore, lacks standing tochallenge 

### its constitutionality. As thisCourt noted inState ex 

### rel. Hauswirth v. Beadle, 

### etal. (1931), 90 Mont. 24, 27, 300 P. 197, this Court willnot consider moot points. There, the Court noted: "The question presented 

### ismoot. (See State ex 

### rel. Rankin v. Martin, 65 Mont. 323, 211 P. 210; Honstain 

### v. Board of County Commissioners, 52 Mont. 391, 158 P. 476; Chesapeake Western Railway v. Jardine, 56 App.D.C. 33, 8 F.2d 794.) This Court

### willnotpass on moot questions. (Stateex 

### rel. OIGradyv. DistrictCourt, 58 Mont. 695, 198 P. 1117; Stateex 

### rel. Rankin v. Martin, supra; Statev. Knilans, 69 Mont. 8, 220 P. 91; Stateex 

### rel. St. George v. Justice Court, 84 Mont. 173, 274 P. 495.)" Therefore, the constitutionality of section 37-3- 102(a),MCA, was rendered 

### a moot question by the jury's verdict of acquittal on the counts charged under that 

### section. Appellant was convicted only of the unlawful practicing of chiropractic, and therefore only the constitutionality of that statute

### isproperly before the Court, viz.

## , section 37-12-101 (2)

## , MCA, defining thepractice of chiropractic. We are faced, therefore, with the question of whether section 37-12-101(2), MCA, is sufficiently specific and detailed to satisfy the requirements of due process. Subsection (2) of this statutereads: "'Chiropractic' is a system of specific adjustment ormanipulation of the articulations and tissues of the body, particularly of the spinal column, for correctionof nerve interference and includes the use of recognized diagnostic and treatment methods 

### as taught inchiropractic colleges but does not include surgery or the prescription oruse of drugs."To summarize the argument of appellant, he contends that the statutedefining the practice of chiropractic contains an indefinite term--"specific adjustment ormanipulation"--which 

### is susceptible todiffering interpretation by experts inthe fieldof chiropractic. He further argues that thepublic cannot be expected toprovide the content for this 

### termwhen experts areunable to agree as to 

### its meaning, and that the statute 

### is therefore unconstitutionally vague. Noting the definition of chiropractic, appellant argues thatnowhere are the 

### terms "specific adjustment" or "articulations and tissues" defined. Therefore, he says, the statutehas an incomprehensible standard tothemembers of the public and places a heavy burden upon a defendant. With regard to the heavy burden placed on a defendant, appellant argues that the statuteprovides no ascertainable standard of conduct againstwhich he might reasonably have measured his conduct asa naturopath, noting: 

# ".

.

# . There must be ascertainable standards of guilt. Men of common intelligence cannotbe required toguess atthemeaning of the enactment. The vagueness may be from uncertainty in regard topersons within the scope of the act, Lanzetta v. New Jersey, 306 U.S. 451, or in

### regard to the applicable 

### tests toascertain guilt." Winters v. New York (1948), 333 U.S. 507, 515- 516, 68 S.Ct. 665, 92 L.Ed. 840. InWinters the Supreme Court went on tonote: "'Where the statuteuses words of no determinativemeaning, or the language is so general and indefinite 

### as toembrace not only acts commonly recognized asreprehensible, but also others which it isunreasonable topresume 

### were intended tobe made criminal, it

### willbe declared void for uncertainty.'" 333 U.S. at516, quoting Statev. Diamond (1921), 27 N.M. 477, 485, 202 P. 988, 991. Appellant argues that, based on Winters, when 

### a statute 

### is sovague as tomake criminal an innocent actthe convic-; 

## .. 1 tion cannot be sustained. H. &i.Clack Co. v. Public Service Commission (1933), 94 Mont. 488, 22 P.2d 1056. Attrial, witnesses Bekkedahl, Vernon, Gorder, and Strunk testified as tothe nature and the extentof appellant's treatment of their respective conditions. In addition, the Stateproduced the expert testimony of Dr. Loren Weisand Dr. Walter Kaye, both licensed chiropractors inthe Stateof Montana, who identified themovements practiced on Vernon and Gorder

as specific adjustments. Dr. 

### Weis inaddition described the relationship between specificchiropractic adjustments and

nerve interference. The evidence introduced by appellant conflicted with the State's evidence on the issue of specificity. Dr. Hoye,

a naturopath, testified thatmanipulations done by 

### a naturopath inhispractice differ from chiropractic adjustments in that naturopathic manipulations lack specificity. Appellant testified that themanipulations done on Vernon and Gorder



### were general rather than specific. On the basis of the conflicting evidence presented tothe jury, thejury found appellant guiltyof practicing chiropractic without a license. The United States Supreme Court inConnally v. General Construction Company (1926), 269 U.S. 385, 391-92, 46 S.Ct. 126, 70 L.Ed. 322, noted: "The question whether given legislative enactments have been thus wanting incertainty has frequently been before this court. In some of the cases the statutes involved 

### were upheld; in others, declared invalid. The precise point of differentiation insome instances isnot easy of statement. But it willbe enough for the present purposes to say generally that the decisions of the courtupholding the statuteas sufficiently certain, rested upon the conclusion that they employed words orphrases having a technical or other specialmeaning, 

### wellenough known toenable those within their reach tocorrectly apply them, Hygrade Provision Co. v. Sherman, 266 U.S. 497, 502; Omaechevarria v. Idaho, 246 U.S. 343,348, ora well-settled common law meaning, notwithstanding an element of degree inthe definition as towhich estimatesmight differ, Nash v. United States, 299 U.S. 373, 376; International Harvester Co. v. Kentucky, supra, 

### at223, or, as broadly stated by Mr. Chief Justice White in United Statesv. Cohen Grocery Co., 255 U.S. 81, 92, 'that, for reasons found toresult either from the textof the statutes involved or the subjects with which they dealt, a standard of some sortwas afforded.' 

# . 

# .."

We find that this case fallswithin the firstclass identified inConnally, supra. The 

### term "specific adjustment ormanipulation" 

### is a scientific

### termhaving a readily ascertainable definitionwithin the chiropractic community, and appellantherein, asa chiropractor licensed intwo states, cannot asserta lack of notice of the meaning of the 

### terms. Viewing the statuteinquestion, in lightof the conduct of which appellantwas convicted, most certainly appellantwas given adequate notice of the kind of conduct that the statuteproscribes. Although no particular mental state

### is identified insection 37-12-301, MCA, the Montana Criminal Code clearly requires that the practice of chiropractic be done knowingly orpurposely toconstitute an offense. Section 45-2-103(1), MCA. The 

### trial court instructed the jury inthe 

### term similar to the Idaho statute relied upon inOmaechevarria v. Idaho (1918), 246 U.S. 343, .3 38 S.Ct. 322, 62 L.Ed. 763, that the actand intentmust both be proved beyond a reasonable doubt to satisfya conviction. Here, the testimony of two State's witnesses, Dr. Weisand Dr. Kaye, gave a definition of the 

### term "specific adjustment" upon which the jury could make a proper decision of what "specificadjustment" was, which was "when a person 

### ispresented with a localized condition involving one or two

or three vertebrae and intentionallybrings about a movement

### of these vertebrae to relieve that condition,he or she has performed a specific adjustment." The key to the query here iswhether the statute in question provides a standard with meaningful differentiation between culpable and innocent conduct. Under section 37-12- 301,MCA, such a standard exists: there can be no statutory violation unless the adjustment in question is shown to be specific and intentional. It is manifest in this case that "specificity"provides a meaningful standard. In fact, a lack of specificity resulted in the dismissal of one count in this case. The United States Supreme Court in Roth v. united States (19571, 354 U.S. 476, 491-92, 77 S.Ct. 1304, 1 L.Ed.2d 1498,where they quoted from United Statesv. Petrillo (1947), 332 U.S. 1, 7-8, 67 S.Ct. 1538, 91 L.Ed. 1877,had this to say: 

# ".

.

# . lack of precision is not itself offensive to the requirementsof due process. 

## '

# ... [TlheConstitution does not require impossible standards'; all that is required is that the language 'conveyssufficiently definite warning as to the prescribed conductwhen measured by the common understanding and practices. 

# . .'



# . . .'That there may be marginal cases in which it is difficult to determine the side of the line on which the particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense 

# . . .f 11 

### Here appellant was a chiropractor by profession and training. Since he was unlicensed in Montana, and during the time the offense was committed had an application in to be licensed in Montana as a chiropractor, the law placed the responsibility on him to assure that his practice of naturopathy be performed with no chiropracticmovements. The fact that the law required appellant to make a choice, and extracted a penalty when his judgmentproved incorrect, does

### not invalidate the statute. As noted in the United States Supreme Court case of Hygrade Provision Co. v. Sherman

(1925), 266 U.S. 497, 502, 45 S.Ct. 141, 69 L.Ed. 402: "If exceptional cases may sometimes arise where opinions might differ, that is no more than is likely to occur, and does occur, in respect to many criminal statutes either upheld against attack or never assailed as indefinite." Here, appellant chose to perform a manipulation which the jury found to be specific and therefore prohibited to all except licensed chiropractors. The next issue raised iswhether the record reflects substantial evidence to support the jury's verdict. Appellant argues that there is no evidence establishing that the treatment of Vernon and Gorder involved specific adjustment

or that the treatmentswere for the purpose of relieving

nerve interference. A 

### review of the record discloses that this contention iswithoutmerit. A brief review of the facts show thatVernon testified that she went to appellant's office complaining of a "rib out." She stated that appellant told her he could put it in place. According to her testimony, appellant then placed his knee on the place indicated by her and pulled her arms back, causing pain. Gorder testified to a treatment of his lower back. He testified that he told appellant he had lower back problems. He was placed lying on his stomach, and appellant told him

one of his vertebrae was lower than the other in the lower back. Appellant then pushed down on his back and it sounded like "bonesmoving." While appellant argues that there is no expert testimony to establish that these were specific adjustments,Dr. weistestified that placing a knee and pulling back on the shoulders

was "pretty specific." "When you have your knee inone particular spot, like against a rib, orwhere the ribjoins thevertebra, you have 

### a particular spot." This Court has often stated that a jury verdict based

on substantial evidence

### willbe sustained on appeal. See, Statev. Pankow (1959), 134 Mont. 519, 522, 333 P.2d 1017. Substantial evidence was presented here from which the jury could conclude that the treatment of Vernon and Gorder involved specific adjustments for relief of nerve interference. Therefore, the jury verdict and judgment 

### willnot be disturbed. Appellant next alleges thathe was subjected todouble jeopardy by the charges of the State. He argues that the failureof the State to

### elect between Counts I and 11, which charged practice of chiropractic on Bekkedahl, Julia Vernon, and Lee Gorder, and Counts IV through VI, charging the practice of medicine on the same patients for the same conduct, subjected him todouble jeopardy. He argues that under the recent 

### case of State ex 

### rel. McKenzie v. 

### District Court (1974), 165Mont. 54, 525 P.2d 1211, thisCourt adopted a so-called "same transaction" test and abandoned the traditional "same facts" rule. Since the counts clearly arose from the 

### same transaction, it 

### is argued that the failureby the State to

### elect between practicing medicine and practicing chiropratic subjected appellant todouble jeopardy. We find

no 

### meritto this argument. The FifthAmendment of the United States constitution provides thatno person "shallbe subject for the same offense tobe 

### twiceput injeopardy of lifeor limb." 

### his prohibition 

### isapplicable to 

### state actionsunder the "dueprocess" clause of the Fourteenth Amendment of the United 

# *.- ' StatesConstitution. North Carolina v. Pkrce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. It protects offenders from multiple punishment for the same offense. Ex Parte Lange (1873), 85 U.S. (18Wall) 163, 21 L.Ed. 872, and Kohlfus-2v. Warden (1962), 149 Conn. 692, 183A.2d 626. Montana's constitutionalprovision is substantially similar providing that "no person shallbe again put injeopardy for the 

### same offense

# . . .I' 1972 Ilont. Const., Art. 11, S25. In a recent case, Statev. Davis (1978), Mont.



## , 577 P.2d 375, 377, 35 St.Rep. 381, this Court considered the issue raised here and held: "This Court has consistently quoted with approval the following holding from the Massachusetts case of Morey v. Commonwealth (1871), 108Mass. 433, 434:

I' 1

# . .

# . A single actmay be an offense against two statutes; and if each statuterequires proof of an additional factwhich the other does not, an acquittal orconviction under either statute does not exempt the defendant from prosecution and punishment under the other.' "State v. Marchindo (1923), 65 Mont. 431, 446, 211 P. 1093; Statev. Lagerquist (1968), 152 Mont. 21, 30, 445 P.2d 910; Statev. McDonald (1971), 158Mont. 307, 310, 491 P.2d 711. See alsoBlockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Gore v. United States (1958), 357 U.S. 386, 78 S.Ct. 1280, 2 L ed 2d 1405." Here, the statutes 

### set forth separate and distinct criminal offenses that aredesigned for the protection of completely differentoffenses. Therefore, appellant suffered no violation of his rights under either the United StatesConstitution or the 1972 Montana Constitution. The protection against double jeopardy is also statutory inMontana. Section 46-11-502, MCA, provides: "When the 

### same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if: 

### "(1)one offense 

### isincluded inthe other;"

### Under this statute appellant suffered no violation unless he was convicted of two offenses, one of which is included in the other. The mere charging of included offenses involves no violation of appellant's rights, nor are his rights infringed upon if the State fails to elect or charge in the alternative as long as a defendant is not convicted of both offenses. Here, appellantwas convicted of two counts of practicing chiropracticwithout a license involving the treatment of two differentpatients on different occasions. These convictions are not subject to, nor do they violate, the double jeopardy provision. We note in closing that appellant argues that the State

no longer follows "the same facts" rule but has now adopted the so-called "same transaction" test. We find this argument erroneous. In the recent case of State v. Perry (1979),

.. 

### Mont. 

## , 590 P.2d 1199, 36 St.Rep. 291, this Court 

### - applied Montana's statutory same facts rule, section 46-11- 501(2)(a), MCA. Perry involved an issue similar to the one raised in State ex rel. McKenzie v. District Court, supra, which is fully consistent with the holding in Perry. We noted inMcKenzie: "The joinder provisions of section 95- 1504,R.C.M. 1947 [nowsection 46-11-404,MCA], are highly flexible. Part (a) therefore permits an information to charge two or more different offenses, connected together in their commission. 

# .

# ." McKenzie, 165Mont. at 62. Appellant argues that the offenses arising from the same transaction generallymust be prosecuted together to avoid double jeopardy. However, where, as here, the State prosecutes "the same transaction" offenses together, double jeopardy is implicated under section 46-11-502, MCA, only if a defendant is convicted of two offenses, one of which is

### included in the other. Here, appellant suffered no such dual convictions, and his double jeopardy claim is therefore without merit. Finding no prejudicial error, the convictions are affirmed.

We concur: 

# 2L-Q J. %ad4 Chief Justice



# %&,&/ Justices