Opinion
02-09-1907
STATE v. LAWSON.
Daniel O. Hastings, Deputy Atty. Gen., for the State. J. Frank Ball, for defendant
Herman Lawson, alias Lawson Herman, was indicted charged with practicing medicine without a license. Verdict.
Argued before LORE, C. J., and PENNEWILL, J.
Daniel O. Hastings, Deputy Atty. Gen., for the State. J. Frank Ball, for defendant
LORE, C. J. (charging jury). The defendant is charged with practicing medicine without a license. Under the statutes of this state, it is a misdemeanor for any person to engage in practicing the profession of medicine, within the limits of this state, without first having obtained a license therefor. The persons classed by the statute as physicians are designated as follows: "Every person (except apothecaries) whose business it is for fee and reward to prescribe remedies or perform surgical operations for the cure of any bodily disease or ailing, shall be deemed a physician or dentist as the case may be, within the meaning of this act." Rev. Code 1852, amended in 1893, p. 58, c. 7.
The defendant does not contend that he had a license to practice medicine, but relies on the defense that he treated his patients personally by hypnotism and massage, without prescribing any remedies, and that such treatment is not in violation of the statute. Your inquiry, then, is: Did the defendant, for fee or reward, prescribe remedies or perform surgical operations for the cure of any bodily disease or ailing in this county within two years next before the finding of this indictment?
It is the duty of the court to instruct you as to the meaning of the word "prescribe" remedies, used in the statute. In medicine, to "prescribe" remedies is defined to be "to write or to give medical directions; to indicate remedies." It is not necessary that such prescription should be in writing. It may be given or indicated verbally. Any direction given to the patient for drugs, medicines, or other remedies, for the cure of bodily diseases, directing how they are to be applied to or used by the patient, is a prescription within the meaning of the statute. It would make no difference whether the direction was given by the person in charge of the patient himself or by another person, even though he be a licensed physician engaged by and under the control and direction of the defendant in that particular. State v. Paul, 56 Neb. 369, 76 N. W. 861; Benham v. State, 116 Ind. 112, 18 N. E. 454; In re Bruendlis' Will, 102 Wis. 45, 78 N. W. 169; O'Neil v. State (Tenn.) 90 S. W. 627, 3 L. R. A. (N. S.) 762.
Personal treatment of one person by another by hypnotism or massage alone, unaccompanied by any direction as to the use of drugs, medicines, or other remedies to be used by the patient, would not come within the term "prescribing remedies" used in the statute. When accompanied, however, by such direction as to the use of drugs, medicines, or other remedies by the patient, it would come within the terms of the statute and be in violation thereof. Should you, therefore, be satisfied from the evidence, beyond a reasonable doubt, that the defendant, within two years next before the finding of the indictment, in this county, did, for fee and reward, either by himself or by another under his direction, engage in the business of prescribing remedies for curing bodily diseases or ailings, your verdict should be guilty. If you are not so satisfled, it should be not guilty.
Exception noted for defendant.
Verdict.