Opinion
03-16-1933
STATE v. GHADIALI.
Daniel J. Dayton, Atty. Gen., and P. Warren Green, Deputy Atty. Gen., for the State.
Prosecution for practicing medicine without a license.
Judgment of guilty.
HARRINGTON, J., sitting.
Daniel J. Dayton, Atty. Gen., and P. Warren Green, Deputy Atty. Gen., for the State.
The defendant was not represented by counsel and conducted his own defense.
Court of General Sessions for New Castle County, No. 31, March Term, 1933.
Indictment for practicing medicine without a license, contrary to the provisions of sections 847 and 849 of the Code of 1915.
Section 847 of the Code of 1915 provided: "It shall not be lawful for any person to practice medicine or surgery in this State without having obtained a license therefor as hereinafter provided."
The material provisions of section 849 of the same Code will appear in the court's charge to the jury.
The indictment originally contained four counts, but counts 1 and 3 were stricken out with the consent of the Attorney-General. The material allegations of the second and fourth counts will appear in the instructions given by the court to the jury.
The defendant, a resident of the state of New Jersey, entered a plea of not guilty and went to trial. It appeared from the evidence produced by the State that the defendant had given a series of lectures at the Hotel duPont in the City of Wilmington on the tenth, eleventh and twelfth days of October, 1932, on what he called "the Foremost Healing System, Spectrochrome Metry, The Health Message of Attuned Color Waves"; that during these lectures he exhibited a certain electrical machine and stated that it would cure certain diseases, including tuberculosis and syphilis, by the application of one of the colors from it, and recommended its use for those purposes; that preceding these lectures circulars advertising them were sent to various people in the City of Wilmington, which read, in part, as follows:
"Good news for the sick, vital message to the suffering, plug your health from the light socket, no diagnosis, no drugs, no manipulation, no surgery. Free public lectures on the Foremost Healing System, Speetro Chrome Metry, The Health Message of Attuned Color Waves. The science of automatic precision by the originator, Col. Dinshah P. Ghadiali, (Honorary) M. D., M. E., D. C, P. H. D., & c Metaphysician and psychologist."
That at the lectures at the Hotel duPont the defendant spoke of conducting certain classes at which he would teach those who attended them how to use the electrical machine recommended by him; that the machine in question was invented by the defendant, including the method of coloring the slides used in it; that he was the president, treasurer and lecturer of "Spectro-Chrome Institute," the New Jersey company by which it was manufactured; that the machine sold for Sixty-five Dollars, and the amount received from sales was applied to the overhead expenses; that the defendant received no compensation for his lectures, but that his living expenses, his traveling expenses and other expenses incurred with is lectures and classes were paid by the company; that the annual report of Spectro-Chrome Institute (a corporation of the state of Delaware) for the current year was introduced, showing that Thirty-nine Hundred and Fifty Dollars in stock was outstanding, and that the defendant was the registered agent, and, also, one of the three directors of that company; that, as shown by its charter, the company began business with 100 shares of stock, 80 of which were owned by the defendant, and that he admitted that he had no license to practice medicine in the state of Delaware.
None of the facts proved by the State were denied by the defendant. He did deny, however, that under these facts he was guilty of violating the statute under which he was indicted.
Most of the various contentions made by him will appear from the prayers which he presented to the court before the case was finally submitted to the jury. After the State had put in the evidence in its primary case he did, however, make the following motions:
1. That the second count of the indictment be stricken out because it was not alleged that he had recommended the use of an appliancefor the cure, relief, or palliation of any ailment or disease of the mind or body to any particular person.
2. That the jury be directed to find a verdict of "not guilty" because the allegations of the indictment had not been proved.
Both of these motions were refused.
Before the court charged the jury these motions were renewed and the court was, also, requested to direct a verdict of "not guilty," but refused to give that instruction.
The defendant, also, requested the court, in charging the jury, to bear in mind, among others, the following principles, and to instruct them accordingly:
That by the Constitution of the United States of America, article 1, § 8, cl. 8, Congress recognized in plain terms the rights of authors and inventors "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
That a law should be read and interpreted in its purpose by the mind of the Legislature, as disclosed in the preamble.
That the statute entitled "Medical Practice Law of Delaware" cannot apply to the system called Spectro-Chrome, originated by the defendant years after the law was enacted.
That the first amendment to the Constitution of the United States of America permits no abridging of freedom of speech and that if the present "Medical Practice Law of Delaware" be construed to encroach upon the right of an inventor to speak about his invention, such construction would render the said law constitutionally invalid.
That the statute did not apply to the inventions of an inventor, inasmuch as it would make it unconstitutional as against the Fourteenth Amendment of the Constitution because it would interfere with the right of contract and liberty of vocation.
That "the power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud. * * * It is only when they have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation." Dent v. W. Va., 129 U. S. 114, 9 S. Ct. 231, 233, 32 L. Ed. 623.
That the State is not given arbitrary power of regulation in a vocation. Smith v. Texas, 233 U. S. 630, 34 S. Ct 681, 58 L. Ed. 1129, L. R, A. 1915D, 677, Ann. Cas. 1915D, 420.
That there are certain operations so plainly interstate in character that no doubt existed regarding the question. Into this category falls the simple solicitation of orders by a traveling salesman, and the subsequent shipment of goods. Such act is purely Interstate Commerce guaranteed and protected by the Fourteenth Amendment of the Constitution of the United States, and no state has any power to regulate such commerce.
That the right of the inventor to his brain child is a right of property and is protected by the Fifth and Fourteenth amendments to the Constitution of the United States of America. Walker on the Law of Patents, p. 186, § 152.
That the right to use any degree is a property right and no state can deprive a man of his honors or qualifications unless there is evidence that they were fraudulently obtained, or something to that effect, substantially.
HARRINGTON, Judge, charging the jury: Notwithstanding the time that it has taken to try this case, the issues involved are comparatively simple. The defendant has been indicted for practicing medicine in this state without a license, and he is being tried on that charge.
The material allegations of the indictment are:
1. That Dinshah P. Ghadiali, late of Wilmington Hundred, and so forth, on certain dates, did then and there, of his own proper authority, unlawfully engage in the practice of medicine without having obtained a proper license therefor from the Clerk of the Peace of New Castle County, according to law, in that he, the said Dinshah P. Ghadiali, then and there, and without having obtained a license as aforesaid, did recommend the use of an appliance for the cure, relief, or palliation of ailment or disease of mind or body with the intention of receiving therefor, either directly or indirectly, money or some other form of compensation, in violation of the laws of the State of Delaware.
2. That Dinshah P. Ghadiali, late of Wilmington Hundred, in the county aforesaid, on the first day of January, nineteen thirty-two, and so forth did then and there, of his own proper authority, unlawfully engage in the practice of medicine without having obtaineda proper license therefor from the Clerk of the Peace of New Castle County, according to law, in that he, the said Dinshah P. Ghadiali, then and there, and without having obtained a license as aforesaid, did use in connection with his name the letters "M. D." implying or designating him as a practitioner of medicine, in violation of the laws of the State of Delaware.
Section 849 of the Code of nineteen fifteen on which the indictment is based provides, among other things, that for the purpose of this chapter, the words "Practice of Medicine or Surgery" shall mean to suggest, recommend, prescribe or direct for the use of "any person, any drug, medicine, appliance or other agency, whether material or not material, for the cure, relief or palliation of any ailment or disease of the mind or body, * * * after having received or with intent of receiving therefor, either directly or indirectly, any money, gift, or other form of compensation."
The same section of the statute further provides: "It shall also be regarded as practicing medicine within the meaning of thi3 Chapter if anyone shall use in connection with his or her name, the words or letters Dr., Doctor, Professor, M. D., M. B., or Healer, or any other title, word, letter or other designation which may imply or designate him or her as a practitioner of medicine, or surgery, in any of its branches."
This clause is followed by a proviso to the effect that nothing in this chapter shall ba construed to apply to the administration of domestic or family remedies in cases of emergency, or to dentists, or to prevent the mechanical application of glasses, and so forth, and, also, including in such proviso druggists practicing pharmacy, according to existing laws, and persons treating corns, bunions and doing manicuring or practicing massage.
The statute in question is, therefore, extremely broad and comprehensive in its terms; but, being a legislative enactment, we are all governed by its provisions regardless of our own ideas of what may constitute practicing medicine, independent of its provisions.
The defendant admits that he had no medical license in this state, but denies that what he did required it; and in order to find him guilty, the State must prove the allegations of the indictment. That is, it must prove to your satisfaction:
1. That the defendant in this State and county recommended for the use of some person or persons, an appliance, by whatever name it may be called, for the cure, relief or palliation of some ailment of the body, and that such advice was given with the intention of receiving, either directly or indirectly, therefor, money or some other form of compensation, or, it must prove,
2. That the defendant used in connection with his name the letters M. D. in such a manner as to imply or to designate him as a practitioner of medicine in the State.
These are the material questions, and the only material questions for you to determine; and this is true no matter who may have instigated the prosecution of the defendant by the State and no matter whether the New Jersey corporation of which the defendant is president and which manufactures the electrical appliance in question, has the right to do business in this state, by reason of the Interstate Commerce clause of the Federal Constitution or otherwise. In other words, the question for you to consider is whether the defendant violated the statute above referred to.
This is a question of fact for you to determine, but, if you believe that the defendant for the purpose and with the intention of receiving, either directly or indirectly, money or other compensation for his advice, recommended the use of the electrical appliance in question, to any of the persons present at the duPont Hotel meetings for the cure or relief of tuberculosis, or any other bodily disease, it would constitute a violation of that clause of the statute referred to in the second count of the indictment; and this would be true though no particular person was singled out and given that recommendation or advice.
Whether, however, such advice or recommendation was given, and if so whether it was given with the intent of receiving some direct or indirect compensation therefor, is for you to determine from the evidence before you.
But, as I have already indicated, proof of both the recommendation of the use of the appliance for the relief or cure of a bodily ailment and the intention of receiving soma compensation for such advice, either directly or indirectly, are essential to proof of the State's case on the second count of the indictment.
As, in most criminal cases, the question as to whether defendant had any such intent must necessarily depend on the facts and circumstances proved, and is for you to determine from the evidence before you.
As, in all criminal cases, where evidence as to an essential element of a case is circumstantial, you must be satisfied, not only that the circumstances are consistent with guilt, but you must also be satisfied that they are inconsistent with any other rational conclusion.
If, however, the evidence establishes the particular detail or element in question to your satisfaction, you should act accordingly.
In this connection, you should also bear in mind, however, that it is not necessary for the State to show that any such purpose or intent was actually realized, or carried out by the defendant, and that he did actually receive some direct or indirect compensation for such recommendation and advice, if any such advice was given.
(The court here charged on reasonable doubt.)
Bearing in mind that you are the sole judges as to the effect of the evidence, whether your verdict shall be "guilty" or "not guilty" is for you to determine from the evidence produced and admitted before you.
But, if you believe that the defendant did violate section 849 of the Code in that he did in this county and state recommend to any person the use of an appliance for the relief or cure of some bodily ailment with the intent of receiving some compensation therefor, either directly or indirectly, or, if you also believe that he used the letters M. D. in connection with his name in such a manner as to imply or designate him as a practitioner of medicine, in this state, your verdict should be "guilty."
If, on the other hand, you do not believe that he recommended to any person the use of an appliance for the cure or relief of some bodily ailment; or, if he did, that he did not make such recommendation with the intent of receiving any direct or indirect compensation therefor; and if you further believe that he did not use the letters M. D. in connection with his name in this state, or, if he did, that he did not use such letters in such a manner as to imply or designate him as a practitioner of medicine in this state, your verdict should be "not guilty."
The jury found the defendant guilty, and on a subsequent date he was sentenced by the court to pay a fine of Two Hundred and Fifty ($250.00) Dollars and costs. He then appealed from that judgment to the State Supreme Court, and, among others, filed in that court the following assignments of error:
3. That the evidence was insufficient to jus tify a verdict of guilty on count 2.
16. That there is absolutely no evidence on the record connecting the defendant, directly or indirectly, with the recommendation and intent of compensation for such recommendation.
22. That the court erred in debarring introduction of evidence showing the scientific background of the defendant and his work.
23. That the court erred in refusing to take Judicial notice of the Delaware State Charter of Spectro-Chrome Institute.
24. That the court erred in refusing to take judicial notice of the United States of America letters patent No. 1544973 pertaining to certain color wave projection apparatus called Spectro-Chrome.
27. That there was nothing in the evidence to indicate that the defendant used the letters, M. D., to imply or designate that ho was a practitioner of medicine in the State of Delaware.
29. That the court erred in not instructing the jury about considering the preamble of the Medical Practice Law of Delaware.
31. That the court erred in not instructing the jury on the value of honorary degrees and their difference from ordinary degrees.
38. That the court erred by frequently advising the defendant to get a lawyer.
40. That the time of 15 minutes allowed the defendant to summarize a case on decision of which his life's work and reputation rested, was too short for justice.
The State Supreme Court affirmed the judgment of the court below.
Note.—The defendant subsequently sued out a Writ of Certiorari to the Supreme Court of the United States, which writ was, on June 4, 1934, dismissed.