People v. Fulda — 4 N.Y.S. 945

Majority

p. 945

People v. Fulda.

(Supreme Court, General Term, First Department.

March 29, 1889.)

Headnote

1. Physicians and Surgeons—License—Indictment—Instructions.

On an indictment under Pen. Code N. Y. § 356, for practicing medicine without a license “from some chartered school, state hoard of medical examiners, or medical

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society, ” an instruction that, if the jury were satisfied beyond a reasonable doubt that defendant practiced medicine at the time and place mentioned, they should convict, unless they were satisfied that at that time he had such a license as is provided for in the statute, describing it, is correct.

2. Same—Burden of Proof.

On proof of defendant’s practicing medicine, the burden is on him to prove that he had the statutory license.

3. Same—License.

Neither a certificate from a medical school in Prussia, that defendant had there passed a limited course of study, nor a commission, after examination therefor, as a medical officer in a regiment in the volunteer army, is such a license as is required by the statute.

4. Same—Prior Practice.

The fact that defendant had been practicing medicine before the enactment of the law of 1874, on which section 356 is based, does not restrict the power of the statute to compel him^to procure a license in order to maintain his practice.

Appeal from court of General sessions, Hew York county.

Albin Fulda appeals from a conviction of practicing medicine without license.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

A. Suydam, for appellant. Mackenzie tiemple, for the People.

The indictment under which the defendant was tried contained three counts, the first charging the practice of medicine without the authority required by section 356 of the Penal Code, namely, without a license authorizing him to practice from some chartered school, state board of medical examiners, or medical society, and the remaining counts being based upon other statutes. Upon the trial, however, the district attorney, on the motion of the defendant, elected the first count as the "count upon which he would ask for a conviction. The evidence showed that he had been practicing medicine in the city of Hew York since 1858; that he was naturalized as a citizen in 1868; that he had received medical education at the universities of Halle and Yena, but that he had never received a full diploma, such as was given by the universities to their graduates upon the completion of their course of study. The evidence also showed that during the war he passed an examination for a commission as medical officer in the Hew York volunteers, and received a commission after such examination as assistant surgeon in one of the regiments of the Hew York infantry.

The learned court charged the jury that, if the evidence satisfied them beyond a reasonable doubt that the defendant practiced medicine at the time and place and in the manner set forth in the first count of the indictment, they should convict the defendant, unless they were satisfied that at that time he had a license authorizing him to practice from some chartered school, state board of medical examiners, or medical society. To this instruction the defendant duly excepted. There seems to have been no error in this charge. The provisions of section 356 made the defendant amenable to punishment, did he practice medicine without the license provided for by said section.

The court further charged that, if the practice were proved, the burden of proof was thrown upon the defendant to prove that he had a license or diploma from some chartered school, state board of medical examiners, or medical society. To this instruction the defendant duly excepted. This seems to have been entirely correct. The burden was upon the defendant to prove, after the people had proved the fact of the practicing of medicine, that he was authorized to practice under the provisions of the statute.

The court further charged that none of the papers produced by the defendant was a license from a chartered school, state board of medical examiners, or medical society. The evidence certainly did not disclose any such license or diploma as was required by the statute. He had no license from the medical school in Prussia. It was merely a certificate that he had passed a iim

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ited course of study. The commission which he received as medical officer in the New York volunteers was not a license or diploma from a state board ■of medical examiners, allowing the defendant to practice medicine generally. It was an examination for a specific purpose, and the certificate issued was simply a limited commission, for the practice of medicine within a limited sphere.

Neither does the fact that before the enactment of the provisions of the law ■of 1874, which formed the basis of section 356 of the Code, the defendant had ■been practicing medicine, restrict the power of the statute to compel the taking out of a license in order to justify his practice. This was part of the police regulations of the state. It was thought necessary for the protection ■of the people that these safeguards should be thrown around them in refer■ence to those who assumed to practice medicine in the community. The state had a right to determine upon what conditions and under what circumstances its citizens should be entitled to pursue any vocation. It was in no way interfering with any vested rights, nor was it a usurpation of authority which was not possessed. There seems to have been no error committed in the disposition of the case, and the conviction must be affirmed. All concur.