Daily Los Angeles herald., 1881-04-21
PractIcIng Medicine Without II.
cense.

Auuiotcu Aoh PAoopSAhS "VuhSihS
without license: 4
Superior Court, Los Angeles
County.
PEOPLE
VS.. }OpiniOn.
G. s. HASTINGS.
The defendant was indicted for
.practicing medicine without the
proper certificate, and In contraven-
ton of the act of April 8, 1875, and
the act amendatOry thereof of
April l, 1878, regulating the prac-
tice of medicine In this State.
Counsel for defendant claims that
the act contains some exceptions
and that these exceptions must be
negatived in the indictment. The
object of the act was to prohibit
any one from practicing medicine
or surgery without first procuring
q certificate from certain boards of
examiners specified in the act.
Section first presc -ibes that no one
shall practice medicine or surgery
unless ne possesses the qualitica-
tions required by the act. The follow.
ing sections up to section IL regu.
late the manner Of procuring prop.
er certificates. Section IL As
amended Is: "Any person shall be
regarded as practiciDg medicine
within the meaning Of this act
who shall profess publicly to be a
phy hysician, or who shall habitually
prescribe for the sick, or who shall
append to his name the letters "M.
D. ~ but nothing herein contained
shall be construed to prohibit gra-
tuitous services in cases OF emer.
gency. And this act and the act
to which this is supplemental and
mandatory shall not apply to law
fully com issi0ned surgeons of the
United States army or navy prac.
ticipg their profession Within the
limits Of this State.o Section of
the amended act reads: "Any per-
son practicing Taedicine or surgery
without first having procured u
certificate to SO practice from one
of the Boards Of Examiners ap-
pointed by one of the societies
mentioned In section two Of this
act, shall be deemed guilty Of mis-.
demeanor," etc., etc.
The rule Is we'll established that
when O statute contains provisions
and exceptions in distinct clauses,
it is not necessary to state in the
indie tment that the defendant does
not come within the exceptions, or
to negative the provisions 1t con.
tains. l Chit. Grim, Law 283, b 2S4
Nor 10 1t even necessary to allege
that he Is not within the benefit of
its provisions, though the purview
should expressly notice them, as
by saying that none shall do the
act prohibited except in cases
thereafter excepted. For all these
are matters of defence which the
prosecutor need not anticipate, but
which are more properly to come
from the prisoner. Bishop Grim.
Pro. 2 631. 2 Metc. (Ky.)8 8. 32 Mo.
$3.50. 81 N. H. 500. 81 M. 149. SO Id
l50.
1t is only when the exception is
in the enacting clause of the stat.
ute and enters into the description
of the offence, that the exception
must be negatived, and the pleader
must show In his indictment that
the defendant is not within the ex-
cepti0ns in such statute. Is Vt.
1876. "a Me. 500. Where, however,
there Is a proviso containing mat.
ter OF excuse for the defendant, 1t
need not be negatived in the indict.
ment, "a Me. 232; and the same is
| true where the statute contains
r-~~,s,e.o and exceptions in dis
tinct clauses. BrItton va. State, 5
Eng. 500. Com. vs.. Hart, IL Cush.
130; 8. G. Green's Grim. Rep. 247.
In determining whether or not
exceptions in statute are to be
negatived in pleading, 1t is imma.
terial whether the exceptions or
proviso be contained in the enact
ing clause or section, or be in.
troduced in q different manner.
Neither does it depend upon any
distinction between the words
"provided" or Except" as they
may be used in the statute. The
question is, whether the exception
is so incorporated with and be.
comes q part of the enactment as
to constitute part of the defini.
ton or description of the offense.
"a VT. go. 83. N. H. 259. 81 ID 422.
ib 495. II Wall 16S.
After words of general prohibit.
ton In statute whatever comes in
by way of proviso or exception
need not be negatived, but must be
set up by the accused, whether the
prOviso or exception be contained
in the enacting or subsequent sec.
tious. State vs.. Miller "a Conn. 522.
If we apply the tests enumerated
in the decisions cited, the conclu.
sion is irresistible that the indict-
ment In this case is good.
There is nothing in the other
points urged by defendants
counsel.
The demurrer to the Indictment
is disallOwed. SEPULvEDA,
Judge.