People v. Cole

The complaining witness testified that she went to the office of the defendant on an upper floor of an office building known as the Brunswick Building, 225 Fifth avenue, and that upon the door of his room was “ Willis Vernon Cole, Christian Scientist.” There were a number of men and women there, coming and going. She asked the defendant if he was Dr. Cole. He stated he was Mr. • Cole, a Christian Science healer, “He said, 6 Who recommended you here? ’ * ® * I said I read about him in the newspapers; * * * that I called to see if he could cure my eyes. I had been troubled with eye trouble. And he said, 6 How long have you been wearing glasses ? ’ And I said, 4 Ten years.’ He said, 4 You understand I do not give any medicine, I only give Christian Science treatment.’ * * ® I said to him, 4 What is Christian Science ? ’ And he said,41 cure by prayer.’ He said that4 You must have faith in God, that God don’t make us to have any disease, that we must be all love and all kindness and that God would cure the infidel as well as the confirmed believer in His Divine power.’ And I said, 4 What would be the fee ? ’ And he said $2 for the first treatment and all subsequent treatments $1. * * * The defendant then said,41 will give you a treatment.’ So Mr. Cole had his chair facing mine, and he closed his eyes and raised his hands up to his face and remained in perfect silence for fifteen or twenty minutes.” He then said: 44 That will do for to-day’s treatment.” 441 said to him, 4 When will I come back again?’ He says, 4You come back on Friday any time.’ * * * I paid him $2.” On the next day she went back and defendant said: 44 Why, you are looking very well.” 441

“ After he gave [me] this second treatment * * * I said to this defendant, ‘ How can you cure locomotor ataxia? ’ He said, 6 Just by prayer and having faith in God? ’ * * * He said, ‘ When patients are given up by physicians they always turn' to Christian Science for help.’ * * * He said he could cure * * * locomotor ataxia by Christian Science.” She came back again on the twenty-third of January. “He said, 6 You are looking very well.’ I said, * I removed the plaster that was on my back as you told me to.’ And he said, 61 want you also to remove the glasses.’ I says, ‘ I have to keep the glasses on.’ * * * I said to Mr. Cole that when I eat bread and potato, I would distress my stomach very much. He said, 6 Leave your stomach alone; you go home and eat anything you

44 Q. WTiat did he say when he took his hands down and opened his eyes? A. He said that was enough for to-day. I then said to the defendant, 4 How is it that you cure cancer? ’ He said, 4 By prayer.’ I said I had a friend who was suffering from cancer and had visited Dr. Mason. The defendant said, 4 Why, I know Dr. Mason.’ He said, 4 By all means send your friend to me for treatment.’ He said, 4 That is the way when patients are given up by physicians they always turn to Christian Science for help.’ ”

On cross-examination:

44 Q. * * * You have said in response to interrogatories on your direct examination, that Mr. Cole said, ® * ® I will cure this, that. and the other. Did not Mr. Cole tell you on

The defendant testified that he had been for eight years an authorized practitioner of the Christian Science church and that he had maintained his office in the Brunswick Building for five years in May; that when he received his first knowledge of Christian Science he was a sculptor, and a poet; that he had never studied medicine in any way; that his average income from his practice was about $5,000 or $6,000; that he did not ask people money for treating them. When they tendered it he took it.

“ Q. Is it or not one of the rules of the Church ? A. I don’t say there is any definite rule, but it is a practice to treat all who are honest and sincere whether they can pay or not, and that is a rule, we are to help every one.”

“ Q. You remember the people who were in the office when she first came, do you ? A. I do. Q. Were they patients ? A. They were. Q. All of them? A. Yes, they were there for treatment.”

Defendant’s account of the first interview with the complaining witness was as follows: “ She sat about four feet away from me, facing me. She told me that she had come to be treated for trouble with her eyes and stomach trouble. I informed her that Christian Science treatment was prayer to God, we did not believe in drugs, medical treatment, any thing like that, and she asked me to give her treatment. Something was said in regard to the basis of Christian Science, and I told her substantially that Christian Science was the truth about God, and the truth about man and the truth about man’s relationship to God and the truth of his birth-right as a result of this relationship, which is the foundation of what we teach, and I told her that on this basis disease was no part of her birth-right, or inharmony, and when she realized her oneness with God, and got in harmony with God that this was the treatment and was what we would do. She sat there for about 15 minutes. I covered my face with my hands, or sat with my head partially bowed for fifteen minutes ® ® ® in prayer to God. * * * Mrs. Benzecry asked me how much I charged for treatment and I told her it was customary to pay $2 for the first treatment and one dollar for any other treatments, and she paid me two dollars.” At another interview 66 she asked me if she should—spoke to me about taking off her glasses, and I said to her,* there is no reason that you should not take off your glasses. I took off mine and had been wearing them for years,’ and I then started to tell her about the work and practice of Christian Science. * * * I told her I had

Under cross-examination:

“ Q. Now you had an office and in that office, as I understand, you held yourself out as being able to treat human diseases through the medium or by the means of the Christian Science doctrine of religion, is that correct? A. Through prayer to God, yes. Q. That is the means by which you held yourself out as being able to treat human diseases; is that correct ? A. It is incorrect. * * ® It is incorrect on this basis, that Christian Science does not recognize disease as a reality. * ® * The patients that come to us to be treated for sin and disease and other inharmonious, similar inharmonious conditions, are treated for those through prayer to God, and it is the function

“And did you treat all patients that came substantially by the same method and in the same way, ® * * all these 3.000 people by the same method of treatment? A. If you mean on that basis, I will state I did, through prayer. Q. I say, did you treat them all by the same method or did you employ different methods? A. One method. Q. Now, it has been testified here both by yourself and I think by Mrs. Benzecry you told her that through Christian Science and God all disease was the same; that is correct, is it not? A. Yes, sir. Q. Therefore you would treat by this method anybody who came into your office no matter with what disease they thought they were afflicted, is that correct? A. I would not say that. * * ® Q. What diseases would you except from that treatment? A. I would not say. Q. Well, I ask you to say. A. There is no special disease that I do exempt. Q. Then why do you say

A number of concessions were made on the trial; that Christian Science is a religion based on the scriptures, founded by Mary Baker Eddy in 1866. It is based on the Christian religion. That Mrs. Eddy’s interpretation of the scriptures, which she named Christian Science, is set forth in a book entitled “ Science and Health with Key to the Scriptures,” first published in 1875, and is the Christian Science text book; that Mrs. Eddy founded a church to represent the Christian Science denomination at Boston, Mass., in 1879, and that this church, known as the First Church of Christ, Scientist, soon became the parent organization of the Christian Science denomination, with local churches, known as branches to the Mother Church, situated in cities and towns throughout the world. Christian Science congregations and churches began to be formed and organized in the State of New York between the years 1885 and 1890, and in May, 1907, there were in the State of New York 72 Christian Science churches, and there are now 80 or more of these churches in this State; that there were in May, 1907, the date of the passage of this law, about 1,000 Christian Science churches situ

Prior to 1907 the statute (Public Health Law [Gen. Laws,.

There was no definition in the statute of the phrase “ practice medicine.” It had been accepted from the time of Smith v. Lane ( 24 Hun, 632 ), decided in May, 1881, that the practice of medicine meant the use of medicines and drugs for the purpose of curing, mitigating or alleviating bodily diseases or manual operations usually performed by surgical instruments or appliances.

In People v. Allcutt ( 117 App. Div. 546 ; affd., 189 N. Y. 517 ) and again in People v. Mulford (202 id. 624 , affirmed on its authority) this court refused to accept Smith v. Lane as authority on the subject, saying: “We do not consider the remarks of the learned judge, above quoted, as being an exhaustive or exclusive definition of the term ‘ practice of medicine.’ ” “ To confine the definition of the words 6 practice medicine ’ to the mere administration of drugs or the use of surgical instruments would be to eliminate the very cornerstone of successful medical practice, namely, the diagnosis.” That case was decided in February, 1907.

In May, chapter 344 of the Laws of 1907 was passed which repealed article 8 of the Public Health Law and provided a substitute therefor. Section 1, relating to “ Definitions,” in subdivision 7, provides as follows: “ The practice of medicine is defined as follows: “ A person practices medicine within the meaning of this act, except as»hereinafter stated, who holds himself out as being able to diagnose, treat, operate, or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or

Section 174. “ Penalties and their collection. Any person who, not being then lawfully authorized to practice medicine within this State and so registered according to law, shall practice medicine within this State without lawful registration or in violation of any provision of this article; ® ® ® shall be guilty of a misdemeanor.”

Therefore this act for the first time clearly defines by statute the phrase, “ the practice of medicine.” The definition is broad enough to cover the acts of the defendant, because he “ holds himself out as being able to * * * treat * * * any human disease,” and he did “ undertake ® * * to * » * treat.” The language of the statute is “ by any means or method.” This covers the means or method used by him. While he denied the material existence of disease and said it was merely mental, yet he undertook to treat people he called patients for what they told him was the matter with them; in other words, what they thought were diseases. He had an

The one question presented here is whether the defendant is permitted to do what he has done under the clause of the statute ( § 173) : “ This article shall not be construed to affect * * ® the practice of the religious tenets of any church.”

Is the commercialized use of prayer for the avowed purpose of treating all persons seeking cure for all kinds of bodily ills the practice of the religious tenets of a church?

In People v. Mulford ( 140 App. Div. 716 ; affd., 202 N. Y. 624 ), affirming the conviction of the defendant of the crime of practicing medicine without being registered, it appeared from the evidence that the defendant had an "office where he received patients and treated them for physical ailments and received compensation therefor; that he gave no medicine and prescribed none; that he performed no surgical operations and used no surgical instruments; that his entire treatment consisted of the laying on of hands and manipulation, breathing and rubbing his hands together, and that his treatment was beneficial to his patients. The sign in front of his office indicated that his treatment was known and designated as Suggestive Therapeutics.

The president of the Weltmer Institute testified: “ The fundamental principle in suggestive therapeutics is that the movement of the mind is the remedy in healing. Mind is both finite and infinite intelligence which governs all physical and mental actions, conscious and unconscious. Thinking is the mind’s mode of acting. Then thought is a movement of the mind. Whatever other method is used is for the purpose of starting the mind of the patient into a state of activity in which the vibrations of his own mind will change the cell vibrations of his body. A movement of the mind that would have in it the constructive idea of replacing diseased tissue with healthy tissue, would be a therapeutic thought. Anything that will induce this subjective intelligence to begin the process of healing is a therapeutic suggestion. Anything from the outside world that would secure a response from the suggestive mind would be a suggestion.”

The Kansas statute provided that any person shall be re

In affirming the conviction the court said: “ The appellant was regularly engaged in soliciting, receiving and treating patients for bodily infirmities, for fees charged and collected. This is within the statute. * * *

“ The claim of the appellant that he only practiced a religious belief within the exception which declares that nothing in the act shall be construed to interfere with any religious beliefs in the treatment of diseases cannot be sustained. The only basis for this claim is the appellant’s testimony that he believed the words of Jesus in regard to healing; that from Bible study and supplemental study of psychology and suggestive therapeutics he believes that he can carry out this healing practice to some extent, and that it is his duty to do so. Still the' fact remains uncontradicted that he diagnosed diseases and treated patients in a matter-of-fact way by manipulations and rubbing. He was thus treating people as a business for compensation by outward physical means, and was not engaged merely in a religious observance, or, as counsel say, ‘ practicing a religious belief.’ The place and value of suggestion in the treatment of diseases need not be discussed, for, apart from this, the appellant engaged in the practice requiring an examination and certificate under the statute. * * * The medical practitioner may entertain any belief his conscience approves, but this will not excuse him from a failure to observe the laws of the State regulating the calling in which he is engaged.”

In Smith v. People ( 51 Colo. 270 ), decided April, 1911, defendant was convicted for “ Practicing medicine without a license.”

“ It is the nature of defendant’s business, not the objects of the corporation or the tenets of his church, that is in controversy. The evidence shows he was practicing medicine within the definition of the statute, and was using the title ‘ Healer,’ to his name, to indicate that he was engaged in the business of healing the sick. He treated in his office or place of business, for hire, persons suffering from disease, for the purpose of curing them. He held himself out to the public as a professional healer of diseases, and a practitioner of the healing art. The statute lays hands on commercial healing as a money making occupation, business or profession, regardless of the method of

After citing certain extracts from the Bible, the court proceeded : “ In the light of these instances, cited from defendant’s own authority, it is confidently believed that the exercise of the art of healing for compensation, whether exacted as a fee or expected as a gratuity, cannot be classed as an act of worship. Neither is it the performance of a religious duty, as was claimed in the district court. * * * Under the indictment, the sole question presented upon the evidence was whether or not the defendant within the time charged. had operated on, or professed to heal, or prescribed for or otherwise treated any physical or mental ailment of another. There was involved no question of sentiment nor of religious practice or duty. If the defendant was guilty as charged, neither pretense of worship nor of the performance of any other duty hould have exonerated him from the punishment which an infraction of the statute involved.”

State v. Marble ( 72 Ohio St. 21 ) was also the case of a Christian Scientist. The court said: “ The conceded facts are that the defendant did not recommend or prescribe for the cure or relief of Christ Hehl any drug, medicine, appliance, application or operation, but on the contrary that he made no diagnosis or any physical examination, gave him no directions as to food,

The appellant relies upon State v. Mylod ( 20 R. I. 632 ), a case of a Christian Scientist. The court there pointed out that the defendant not only did not attempt to treat disease but he denied its very existence. We considered that' case in People v. Allcutt (supra), saying: “ In contrast with this last case is People v. Pierson ( 176 N. Y. 201 ). Pierson believed in 6 Divine healing.’ His child had catarrhal pneumonia and died. Pierson did not call in a physician, but believed the child could be cured by prayer. He was convicted under section 288 of the Penal Code for willfully omitting to furnish ‘ medical attendance ’ to the child.”

In the Pierson case Judge Haight wrote as follows: “ The remaining question which we deem it necessary to consider

“ 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 Creator

In the case at bar this court has no right, and does not presume, to pass upon the faith, belief or religious tenets of the Christian Scientists or the efficacy of the methods of their practitioners in treating disease or error. Its sole concern is whether upon the facts proven the defendant was properly convicted of practicing medicine without being licensed and registered, and whether the conceded acts come within the exception as the practice of the religious tenets of any church.

Tenet is defined by the Century Dictionary as “ any opinion, principle, dogma, or doctrine which a person, school or sect holds or maintains as true.” A man’s right to hold and express such is unquestioned. But when he advances from the realm of thought to that of action, he must obey the law.

In Watson v. Maryland ( 218 U. S. 176 ) Day, J., said: “ It

Upon the foregoing authorities we reach the conclusion that the acts complained of constitute the practice of medicine, were not the practice of the religious tenets of any church, and to authorize the defendant to administer the treatment, which he concedes he did, he must have first been duly licensed and registered in accordance with the provisions of the Public Health Law.

It follows that the judgment of conviction appealed from should be affirmed.

Ingraham, P. J., Laughlin and Hotchkiss, JJ., concurred; Dowling, J., dissented.

( concurring) :

I concur with Mr. Justice Clarke, but I am of opinion that the acts performed by the defendant if performed in a Christian Science church, or in visiting the members of the church or others and so administering to them without charge, would not violate the statute.

(dissenting) :

I fully agree with the conclusion reached by Mr. Justice Clarice that the defendant is not protected by the clause of the statute providing that “ this article shall not be construed to affect * * * the practice of the religious tenets of any church.” The record, as quoted from in that opinion, clearly shows the commercial phase of the defendant’s activities as distinguished from any religious observance. None of the indicia of worship were present in the defendant’s actions, which were not had in a place of religious worship, nor in any building connected therewith. They were not performed in accordance with the discipline enjoined by his church. They were not accompanied by any act of worship, prayer or devotion in which the person seeking relief participated. Had the tenets of the Christian Science church recognized the interposition of the agent or official known as a “ healer ” who, in its church building devoted to worship, or in a building connected therewith, joined in prayer with believers in those same tenets to procure from the Almighty relief for their afflictions, I believe such acts would have come within the saving clause of the statute, whether or not a fee or gratuity was paid for the aid thus afforded by the “healer.” But where a person opens a business office disconnected from any place of worship, and in surroundings incongruous with any idea of sacrifice or prayer, and for pecuniary consideration furnishes such services as he undertakes to give, then it is no longer a question of one’s fol

Still, as I view this case, and with due respect for the authorities which have been so persuasively presented in the majority opinion, I do not believe the pursuit in which the defendant was engaged was the practice of medicine. So far from that being the case, the record shows that the defendant disavowed any personal ability or power to influence or affect the condition of the person seeking relief, and urged in every possible way the view that God alone, whom he called the “ Great Physician,” could cure what was called “ disease,” and that those who lived honest, pure and kindly .lives would remain well. He emphasized the fact that God was the only healer, and that prayer to God was the only efficacious means for relief. He practiced no deceit, and made no false professions of ability to be of service. He disavowed any mysterious element in his own practices, and told the witness that by reading Mrs. Eddy’s works she could master the means for obtaining relief as well as he had done. Starting with the negation of the existence of disease as a physical fact and following it up with the statement that what is ordinarily recognized as the presence of disease is simply evidence of “ a lack of harmonious relation with the Almighty,” he suggested as the only recourse the restoration of a proper spirit of harmony with, and obedience to the Maker, which condition could be brought about by the person who came to him for help without his assistance, but to bring about which condition he was willing to assist if she so desired. He made no diagnosis; he made no effort to determine the existence or non-existence of any specific disease; he performed no manipulations, passes or any physical acts tending to create a belief that he was exercising visibly any power to relieve the witness; he made no claim of any power resident in himself to relieve any

It is to assist this last class that the defendant’s services were offered, and whether he performed those services for those who believed in the tenets of his own faith or not, it séems to me clear that .in offering his prayers he was not practicing medicine. Nothing could be further from any conventional notions of extending medical assistance than what was done by the defendant. There is no reason to doubt his statement that he actually spent in prayer the time described by the witness. Assuming, as he had the right to do, that the witness was acting in good faith in going to him, there is no reason to doubt that he believed honestly that by his prayers he could assist her in placing herself in the proper spiritual attitude toward her Maker.

Under all these conditions I believe that the record does not disclose facts sufficient to justify a finding that the defendant was practicing medicine within the terms of the statute, and that the conviction was, therefore, improperly had and should be reversed.

Judgment affirmed.