People v. Christian — 21 N.Y. Crim. 577

Majority

p. 577

SUPREME COURT-APP. DIVISION-FIRST DEPARTMENT,

Dec., 1907.

THE PEOPLE v. EUGENE CHRISTIAN.

(122 App. Div. 122.)

Headnote

Unauthorized practice of medicine.

The court will not apply any hard and fast rule in determining what acts constitute practice of medicine without authorization and registration contrary to the statute.

Appeal by the defendant, Eugene Christian, from a judgment of the Court of Special Sessions of the first division of the city of New York, rendered on the 4th day of April, 1907, convicting the defendant of the crime of unlawfully practicing medicine.^[1]

Samuel M. Gardenhire, of counsel [Gardenhire & Jetmore], for the appellant.

Robert S. Johnstone, of counsel [William Travers Jerome, District Attorney], for the respondent.

The information accused the defendant of the crime of practicing medicine without lawful authorization and registration. We have carefully examined the record in this case and have reached the conclusion that upon the facts presented the defendant had not committed the crime charged.

In People v. Allcutt ( 117 App. Div. 546 ; affd., 189 N. Y.

p. 578

517 ), this court said: “ It may be difficult by a precise definition to draw the line between where nursing ends and the practice of medicine begins, and the court should not attempt, in construing this statute to lay down in any case a hard and fast rule upon the subject, as the courts have never undertaken to mark the limits of the police power of the State or to have precisely defined what constitutes fraud. What the courts have done is to say that given legislation was or was not within the limits of the police power, or that certain actions were or were not fraudulent.” We thereupon proceeded to review all of the facts in that case and drew the conclusion therefrom that Allcutt came within the purview of the statute prohibiting the practice of medicine without being lawfully authorized and registered, and sustained the conviction.

In the case at bar the learned district attorney has collated certain of the facts which were similar to those presented in the Allcut case, and upon them urges that the judgment should be affirmed. But there were other facts of great importance to the conclusion reached in the Allcut case not present here. It would serve no useful purpose to set forth the evidence because, as we have said, the court declines to lay down a hard and fast rule in such cases.

As upon the whole case we find that no crime was committed and that the defendant was improperly convicted, the judgment appeal from should be reversed.

Present—Patterson, P. J., Ingraham, McLaughlin, Claree and Houghton, JJ.

Judgment reversed. Settle order on notice.