Opinion
March 10, 1950.
Appeal from the Circuit Court for St. Lucie County, A.O. Kanner, J.
Errol S. Willes, J.M. Sample and Charles E. Becht, Fort Pierce, for appellant.
Richard W. Ervin, Attorney General and Reeves Bowen, Assistant Attorney General, for appellee.
Appellant was indicted on three counts as follows: (1) Practicing medicine without having first secured a license from the State Board of Medical Examiners. (2) Unlawfully using the title "Dr." prefixed to his name which tended to imply that he was a practitioner of medicine. (3) He did unlawfully use the abbreviation "Dr." in the conduct of his occupation relating to public health, diagnosis and treatment of disease without having secured a license from the State Board of Medical Examiners.
At the trial the jury found defendant guilty as charged in the second count, the court adjudicated him guilty of using the title "Dr." in connection with his name, which tended to imply that he was a practitioner of medicine and sentenced him to serve two years at hard labor in the State Penitentiary. A motion for new trial was overruled and defendant appealed.
The conviction of appellant on count two was tantamount to acquittal as to counts one and three. Count two charged that on the 6th day of January 1949, defendant did "unlawfully use in connection with his name a designation, to-wit: `Dr.' which tended to and did imply and designate him, the said J. McMillon, as a practitioner of medicine, without having first obtained a license so to do from the State Board of Medical Examiners."
It is common knowledge that the title "Dr." derives from many sources other than that of medical practitioner. The appellant had been licensed to engage in the business of medicine vendor and manufacturer for many years. He had carried on his business as such and was not precluded from the usual trade talk necessary to vend his wares. We have examined the evidence and we fail to find any proof that the use of the title "Dr.", if appellant did in fact use it voluntarily, tend to show or imply that appellant was a general practitioner of medicine, or held himself out to be such. There must be substantial evidence to show that he was guilty of the charge in the second count. For all the record discloses the prefix "Dr." to defendant's name may have derived from a source that had no connection with the practice of medicine and the fact that he was acquitted as to count three would so indicate.
For these reasons the motion for new trial should have been granted.
Reversed for a new trial.
ADAMS, C.J., and THOMAS and ROBERTS, JJ., concur.