People v. Pierson

The indictment accused the defendant of the crime of violating section 288 of the Penal Code in that he “ did wilfully, maliciously, and unlawfully omit without lawful excuse, to perform a duty imposed upon him by law, to furnish medical attendance for his said (J. Luther Pierson’s) female minor child, under the age of two years, the said minor

The facts disclosed upon the trial are without substantial dispute, and are in substance as follows : The defendant and his wife lived at Valhalla near White Plains, Hew York, with an infant girl sixteen and a half months old, whom they had adopted. In January, 1901, the child contracted whooping cough which continued to afflict her until about the 20th day of February, at which time catarrhal pneumonia developed, resulting in death on the 23rd of February, 1901. The defendant testified that for about forty-eight hours before the child died he observed that her symptoms were of a dangerous character, and yet he did not send for or call a physician to treat her, although he was able financially to do so. His reason for not calling a physician was that he believed in Divine healing which could be accomplished by prayer. He stated that he belonged to the Christian Catholic church of Chicago, that he did not believe in physicians, and his religious faith led him to believe that the child would get well by prayer. He believed in disease, but believed that religion was a cure of disease.

In submitting the case to the jury the trial court charged, in substance, that before the jurors could convict the defendant they must find that he knew that the child was ill, and deliberately and intentionally failed or refused to call a physician, or to give the child such medicines as the science of the age would say would be proper that a child in its condition should have; that if at the time he refused to call a physician - he knew the child to be dangerously ill, his belief constitutes no defense whatever to the charge made. In other words, no man can be permitted to set up his religious belief as a ■ defense to the commission of an act which is in plain violation of the law of the state. The jury rendered a verdict of guiluy

Section 288 of the Penal Code, so far as is material upon the question under consideration, provides as follows: “ A person who, 1. Wilfully omits, without lawful excuse, to perform a duty, by law imposed upon him, to furnish food, clothing, shelter, or medical attendance to a minor, """ * * or, 4. Neglects, refuses or omits to comply with any provisions of this section, * * * is guilty of a misdemeanor.”

It would seem that the legislative intent in adopting this provision of the Code is reasonably clear, although possibly more precise language could have been employed. It contemplates that there are persons upon whom the law casts a duty of caring for minors, but it does not specify the persons. They are, however, those upon whom the duty is “ by law imposed.” They are designated in the statutes and in the common law as the parents, guardians, or those who by adoption or otherwise have assumed the relation in loco parentis. The duty of such a person is specified by the provisions of the section. It is “ to furnish food, clothing, shelter, or medical attendance.” Giving the statute a reasonable construction by applying the rule of necessity, it is apparent that it means the necessary food, clothing, shelter or medical attendance required for the preservation of the health and life of the child. We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted which in most instances may be overcome by the ordinary household nursing by members of the family; that a reasonable amount of discretion is vested in parents, charged with the duty of maintaining and bringing up infant children; and that the

It is now contended that section 288 of the Penal Code does not in terms, or in effect, make it the duty of any one to furnish medical attendance to a minor child, and that under the common law it is not part of the duty of parents to provide medical attendance for their children. We have already considered, in part, the provisions of the section and have indicated our conclusion that the clause, “a duty by law imposed,” as found in this section, had reference to the person upon whom the law imposed the duty of caring for minors, leaving it to the ¡drevisions of the section to particularize as to the character of those duties. In other words, that the section, properly construed, means that a person upon'whom the law has imposed the duty to care for a minor, who willfully omits without lawful excuse to furnish such minor with necessary food, clothing, shelter or medical attendance, is guilty of a misdemeanor. Under this construction of the statute, the duty of parents to • furnish medical attendance for their children is expressly provided for, and is made obligatory upon them, even if they were exempt from such duty under the common law. These views are in harmony with section 289 of the Penal Code, which provides that “A person who: 1. Wilfully causes or permits the life or limb of any child actually or apparently under the age of sixteen years to be endangered, or its health to be injured, or i-ts morals to become depraved,

We are thus brought to a consideration of what is meant by the term “ medical attendance.”. Does it mean a regularly licensed physician, or may some other person render “ medical attendance? ” The foundation of medical science was laid by Hippocrates in Greece five hundred years before the Christian era. His discoveries, experiences and observations were further developed and taught in the schools of Alexandria and Salerno, and have come down to us through all the intervening centuries, yet medicine as a science made but little advance in northern Europe for many years thereafter; practically none until the dawn of the eighteenth century. After the adoption of Christianity by Pome and the conversion of the greater part of Europe, there commenced a growth of legends of miracles connected with the lives of great men who became benefactors of humanity. Some of these have been canonized by the church, and are to-day looked upon by a large portion of the Christian world as saints who had miraculous power. The great majority of miracles recorded had reference to the healing of the sick through Divine intervention, and so extensively was this belief rooted in the minds of the people that for a thousand years or more it was considered dishonorable to practice physic or surgery. At the Lateran Council of the church, held at the beginning of the thirteenth century, physicians were forbidden, under pain of expulsion from the church, to undertake medical treatment without calling in a priest; and as late ras two hundred and fifty years thereafter Pope Pius V renewed the command of Pope Innocent by enforcing the penalties. The curing by miracles, or by interposition of Divine power, continued throughout Christian Europe during the entire period of the Middle Ages,

With the commencement of the eighteenth century a number of important discoveries were made in medicine and surgery which effected a great change in public sentiment, and these have been followed by numerous discoveries of specifics in drugs and compounds. These discoveries have resulted in the establishment of schools for experiments and colleges throughout the civilized world for the special education of those who have chosen the practice of medicine for their profession. These schools and colleges have gone a long way in establishing medicine as a science, and such it has come to be recognized in the law of our land. By the middle of the eighteenth century the custom of calling upon practitioners of medicine in case of serious illness had become quite general in England, France and Germany, and, indeed, to a considerable extent throughout Europe and in this country. From that time on the practice among the people of engaging physicians lias continued to increase until it has come to be regarded as a duty, devolving upon persons having the care of others, to call upon medical assistance in case of serious illness. Schouler, in his work on Domestic Relations, at page 318, speaking upon the subject of parental duty in the maintenance of children, says : “ It is a plain precept of universal law that young and tender beings should be nurtured and brought up by their parents; and this precept have all nations enforced.” And again, at page 548, speaking upon the subject of what constitutes necessary maintenance, he

Formerly, no license or certificate was required of a person who undertook the practice of medicine. A certificate or diploma of an incorporated medical college was looked upon by the public as furnishing the necessary qualification for a person to engage in the practice of such profession. The result was that many persons engaged in the practice of medicine who had acquired no scientific knowledge with reference to the character of diseases or of the ingredients of drugs that they administered, some of whom imposed upon the public by purchasing diplomas from fraudulent concerns and advertising them as real. This resulted in the adoption of several statutes upon the subject. The first statute to which we call attention is chapter 513 of the Laws of 1880, in which every person, before commencing to practice physic and surgery, is required to procure himself to be registered in the office of the clerk of the county where he intends to practice, giving the authority under which he claims the right to engage in the profession, either by diploma or license, and making.a violation of the provisions of the act a misdemeanor. Although this statute was an amendment of chapter 746 of the Laws of 1872, it is the first statute that we have found which prohibits the practice-of medicine by any other than a person possessing a diploma from a medical college conferring upon him the degree of doctor of medicine, or a certificate from the constituted authorities giving him the

It will be observed that the provision of the Penal Code under consideration was first adopted in 1881 following the statute of 1880 prohibiting the practice of medicine by other than physicians duly qualified in accordance with the provisions of the act. This, we think, is significant. The legislature- first limits the right to practice medicine to those who have been licensed and registered or have received a diploma from some incorporated college conferring upon them the degree of doctor of medicine, and then the following year it enacts the provision of the Penal Code under consideration, in which it requires the procurement of medical attendance under the circumstances to which we have called attention. We think, therefore, that the medical attendance required by che Code is the authorized medical attendance prescribed by the statute, and this view is strengthened from the fact that the third subdivision of this section of the Code requires nurses to report certain conditions of infants under two weeks of age “ to a legally qualified practitioner of medicine of the city, town or place where such child is being cared for,” thus particularly specifying the kind of practitioner recognized by the statute as a medical attendant.

The remaining question which we deem it necessary to consider is the claim that the provisions of the Code are violative of the provisions of the Constitution, article 1, section 3, which provides that “ The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind ; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious

We are aware that there are people who believe that the Divine power may be invoked to heal the sick, and that faith is all that is required. There are others who believe that the

The order of 'the Appellate Division reversing the judg.ment of conviction should be reversed, and the judgment of conviction of the trial court affirmed.

I concur in the opinion of Judge Haight The State as parens patrios is authorized to legislate for the protection of children. As to an adult (except possibly in the case of a contagious disease which would affect the health of others) I think there is no power to prescribe what medical treatment he shall receive, and that he is entitled to follow his own election, whether that election be dictated by religious belief or other considerations.

Pabkeb, Oh. J., Babtlett, Vann, Cullen and Webneb, JJ., concur; Mabtin, J., not voting.

Order reversed, etc.