Opinion · Ohlaw Ohio
STATE v. WINTERICH, 157 Ohio St. 414 (1952)
105 N.E.2d 857
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1952-04-30
- Topic
- general
STATE v. WINTERICH, 157 Ohio St. 414 (1952) 105 N.E.2d 857 THE STATE OF OHIO, APPELLEE v. WINTERICH, APPELLANT. No. 32810Supreme Court of Ohio. Decided April 30, 1952.
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UpLaw has not yet analyzed STATE v. WINTERICH, 157 Ohio St. 414 (1952). The absence of a flag is not a finding that it is good law.
STATE v. WINTERICH,157 Ohio St. 414(1952)
105 N.E.2d 857
THE STATE OF OHIO, APPELLEE v. WINTERICH, APPELLANT.
No. 32810
Supreme Court of Ohio.
Decided April 30, 1952.
1. The provision of Section 12694, General Code, that "whoever practices medicine or surgery, or any of its branches before obtaining a certificate from the State Medical Board in the manner required by law * * * shall for the first offense be fined," applies to one who has a certificate for the practice of a limited branch of medicine or surgery and who practices medicine or surgery beyond the scope permitted by such limited certificate.
2. The term, "drug," is defined in Section 1296-1, General Code, as "(a) articles recognized in the official United States Pharmacopoeia, or official National Formulary, or any supplement to either of them, intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and (b) all other articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals, and (c) articles (other than food) intended to affect the structure of any function of the body of man or other animals; and (d) articles intended for use as a component or any articles specified in clause (a), (b), or (c); but does not include devices or their components, parts or accessories."
3. The mere fact that an article is recognized in the official United States Pharmacopoeia or official National Formulary does not of itself, under the foregoing definition, constitute that article a drug.
4. A conviction of an alleged criminal offense cannot be predicated on general principles or mere suspicion, but must be predicated on probative evidence of every material element which is necessary to constitute the crime.
Appellant, Agnes H. Winterich, hereinafter designated defendant, was charged with violating Section 12694, General Code, in that she had engaged in the practice of medicine without a license.
The pertinent part of the affidavit on which the prosecution of defendant was based, reads as follows:
"* * * that on or about the 22nd day of May, A.D. 1950, at the city of Cleveland in said county of Cuyahoga, one Agnes H. Winterich did unlawfully practice medicine and surgery at 10516 Wade Park avenue, before she, the said Agnes H. Winterich, had obtained a certificate to practice medicine and surgery or any of its branches from the State Medical Board of Ohio in the manner required by law, except certificates to practice chiropractic, electrotherapy and mechanotherapy which do not permit the use of drugs, in this to-wit: the said Agnes H. Winterich did then and there prescribe, advise, recommend and dispense for a fee, to-wit: the sum of thirty-five dollars ($35) certain drugs the nature of which are pills marked Si, MM, and Basic Endocrine Formula GE 8 labelled as containing brain extract, fennel and sage tea, for the cure and relief of the bodily infirmities and diseases of Viola Erickson, to-wit: thrombosis, platecia, stomach trouble, excessive systemic arsenic and body out of harmony, and further deponent says not * * *."
The evidence discloses that one Viola Erickson, employed by the Cleveland Better Business Bureau, visited the office of defendant on May 22, 1950, and stated that she was Mrs. Mae Searles, that she was suffering with stomach trouble and frequent headaches and that she desired treatment.
Mrs. Erickson gave defendant a history of her physical condition and childhood diseases and was examined by defendant, the examination consisting of Mrs. Erickson's sitting before a machine, called aPage 416radioclast, and holding a small disc in her hand while defendant turned knobs on the machine and made notations on a sheet of paper. Thereafter Mrs. Erickson rested a short time and was then given a treatment with an instrument, the defendant turning knobs thereon and making more notations.
Defendant then gave Mrs. Erickson a chiropractic treatment.
The treatments consumed almost two hours.
Defendant told Mrs. Erickson that she had a platecia, which was a pinprick hole in the vein on the right side of the head which affected the vagus nerve, and that the vagus nerve was causing the stomach trouble.
After the treatment, defendant told Mrs. Erickson that the platecia was gone, that it might come back and that she should take further treatments.
Defendant advised Mrs. Erickson about her diet; that she should drink fennel and sage tea during the day; that she should drink only boiled water or Minnehaha water; that certain vegetables were infested with spray poison; and that she should drink either raw milk or goat's milk.
Defendant gave Mrs. Erickson two little packets of pills, an order blank with a designation GE 8 and a list of vegetables which could be eaten without washing and charged her $35, which sum Mrs. Erickson paid to defendant.
The two packets of pills and tablets contained only lactose or milk sugar with a small amount of common salt, and the preparation GE 8, purchased by Mrs. Erickson from the Basic Endocrine Sales Company, contained "cholesterol, cerebrocides and lacithin, brain substance material along with some vegetable fiber."
At the conclusion of all the testimony the court charged the jury in part as follows:
"I shall now define for you the meaning of several terms used thus far in this charge.Page 417
"Section 1296-1, Part 2 of the General Code, reads as follows: `The term "drug" or "pharmaceutical preparation" means (a) articles recognized in the official United States Pharmacopoeia, or official National Formulary, or any supplement to either of them, intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and (b) all other articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and (c) articles (other than food) intended to affect the structure or any function of the body of man or other animals.'
"Now, Webster's abridged dictionary defines `drug' as `any substance used as a medicine or in making medicine for internal or external use.'
"Webster's also says that `according to the Pure Food and Drug Act the term "drug" includes all medicines and preparations recognized in the United States Pharmacopoeia and the National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure or mitigation of disease of either man or animal.'
"In this connection I may state that fennel and sage are used in the United States Pharmacopoeia as drugs and therefore come within the definition as drugs."
At the conclusion of the charge the jury retired and thereafter requested further instructions from the court. Upon the return of the jury to the courtroom, one of its members handed the judge a written slip on which were written the words, "if sage and fennel are used as a tea are they still considered a drug?"
The judge answered the question in the affirmative and, after the jury had returned to the jury room, advised counsel of the contends of the written inquiry and his answer thereto.Page 418
The jury found defendant guilty as charged, and sentence was imposed.
The Court of Appeals affirmed the judgment of the Municipal Court.
The cause is before this court upon the allowance of a motion to certify the record.
Defendant contends that the court erred in overruling the motion.
Section 12694, General Code, provides in part as follows:
"Whoever practices medicine or surgery, or any of its branches before obtaining a certificate from the State Medical Board in the manner required by law, or whoever advertises or announces himself as a practitioner of medicine or surgery, or any of its branches, before obtaining a certificate from the State Medical Board in the manner required by law; or whoever opens or conducts an office or other place for such practice before obtaining a certificate from the State Medical Board in the manner required by law; or whoever not being a licensee conducts an office in the name of some person who has a certificate to practice medicine or surgery, or any of its branches; or whoever practices medicine or surgery, or any of its branches, after a certificate has been duly revoked, or, if suspended, during the time of such suspension, shall * * *."Page 419
Defendants contends that since the affidavit shows that at the time of the offense of which she was charged she was the holder of three certificates issued by the State Medical Board, authorizing her respectively to practice chiropractic, electrotherapy and mechanotherapy, she was not engaged in the practice of any of the branches of medicine or surgery without a license as alleged in the affidavit.
There is some force to defendant's contention.
There are no common-law crimes in Ohio, and it is well established that penal statutes must be construed strictly.
This court held inStatev.Meyers,56 Ohio St. 340,47 N.E. 138, that "a statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute."
However, Section 12694, General Code, must be read in connection with Section 1274-1, which authorizes the State Medical Board to "examine and register persons desiring to practice any limited branch or branches of medicine and surgery" and which defines such limited branches to "include chiropratic * * * mechanotherapy * * * electrotherapy," and also must be read in connection with Section 1274-3, which provides that "such certificate shall authorize the holder thereof to practice such limited branch or branches of medicine or surgery as may be specified therein, but shall not permit him to practice any other branch or branches of medicine or surgery nor shall it permit him to treat infectious, contagious or venereal diseases, nor to prescribe or administer drugs, or to perform major surgery."
It is axiomatic that in construing a statute a courtPage 420should, if possible, avoid a construction which would lead to an absurd or meaningless situation, and the only reasonable construction of Section 12694 must be that the phrase therein, "whoever practices medicine or surgery, or any of its branches, before obtaining a certificate from the State Medical Board in the manner required by law," contemplates a certificate to practice coextensive with the practice one seeks to engage in. Under such a construction, prosecutions are authorized under Section 12694, General Code, whenever a holder of a certificate to practice a limited branch of medicine engages in a practice beyond the scope of the limited certificate.
In our opinion, therefore, the motion of defendant for a judgment, upon the ground that the affidavit does not state an offense, was properly overruled.
Defendant contends further that the trial court erred in its charge to the jury when it stated that "fennel and sage are used in the United States Pharmacopoeia as drugs and, therefore, come within the definition of drugs," and when it stated that it would take judicial notice that fennel and sage were not foods.
Defendant also claims error upon the part of the trial judge when he answered in the affirmative the jury's interrogatory as to whether fennel and sage used as a tea are still considered drugs. There was no evidence introduced in the present case with reference to anything in either the official United States Pharmacopoeia or the official National Formulary.
It is contended by the state that the judge may take judicial notice of the contents of those publications and that he may inform himself in any way which may seem best to him concerning subjects of which he may take such notice.
The state admits that the 1950 edition of the United States Pharmacopoeia failed to disclose the listing ofPage 421fennel although it was listed in the National Formulary, and that sage was not listed in either the pharmacopoeia or the formulary.
Assuming that the court may take judicial notice of what is listed in the pharmacopoeia and formulary, under the definition of "drug" in Section 1296-1, General Code, it is not sufficient that the article be recognized in the pharmacopoeia or formulary, but to make the article a "drug" it must, in addition, be intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease, and to constitute any other article a "drug" it must be intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals or must be an article (other than food) intended to affect the structure or any function of the body of man or bodies of other animals. Therefore, the charge that an article is a drug, simply because it is listed in the pharmacopoeia or formulary, without qualifying it by its intended use, is an incorrect statement under the law of Ohio and the court committed prejudicial error in so charging.
There is no question that certain articles may be either food or drugs, depending on their intended use.
In the case ofStatev.Hutchinson,56 Ohio St. 82,46 N.E. 71, Judge Williams stated in the opinion, with reference to whiskey:
"It is none the less a medicine because it is some times taken as a beverage, or, like many other articles of medicine, may some times be applied to other than medicinal uses."
TheHutchinson caseconcerned a trial of an alleged violation of the Pure Food and Drug Act.
In its brief in the present case, the state asserts that defendant was practicing medicine when she advised Mrs. Erickson to drink no water unless it was boiled or to drink Minnehaha water, and alleges that distilledPage 422water is listed in the latest edition of the United States Pharmacopoeia. Assuredly, boiled or spring water would not of itself be a drug under the statutory definition unless it was intended for the uses outlined in the statute.
Defendant insists that all the advice and articles which she gave to Mrs. Erickson either concerned or were articles of food, and there is no evidence contrary to this. In fact, the court indicated to the jury that what defendant wrote on state's exhibit 7, namely, peas, lima beans, corn, potatoes, carrots, raspberries, blueberries, bananas, rye bread, raw sugar, goat's milk, raw milk, and Minnehaha water, are foods, although fennel and sage are not.
As we have said, there is not a scintilla of evidence to dispute the evidence of defendant that all the articles with which the present case is concerned are foods, and there is not a scintilla of evidence that they were intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease.
Mrs. Erickson testified:
"Q. Was there or was there not any reason stated why you should take those pills?
"A. No, I don't think she made a definite statement."
Defendant gave treatments to Mrs. Erickson, within the scope of her license for limited medical practice, which lasted almost two hours, and defendant insists that the charge which she made was for that treatment; that the foods which she suggested were not to cure any disease of Mrs. Erickson but simply to supply deficiencies in diet; that defendant's actions in reference to the foods were simply gratuities; that it was for the treatments that the charge was made; and that there is no evidence that the charge was excessive.
Mrs. Erickson testified with reference to an arrangementPage 423for further treatments that defendant told her not to come back if she were not serious because of the expense and she should buy herself an expensive present rather than come back for treatments; that she told defendant she was serious and would let defendant know when she would return; that she later called defendant and cancelled the appointment; and that that conversation took place during defendant's examination of her.
It seems to us that there is an entire lack of proof to sustain the verdict of guilty rendered in the present case in view of the fact, there was positive testimony that all articles given or recommended to Mrs. Erickson were foods, that they were not intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease, and that the charge of $35 was made for the treatments alone; that there is no evidence that such charge is exorbitant for such treatments; that the articles in question can not be said not to be food as a matter of law; and that Mrs. Erickson herself testified that nothing was said to her by defendant that such articles were given or recommended to her for the purposes mentioned in Section 1296-1 (2), General Code.
Defendant moved for a directed verdict at the close of the state's evidence and renewed that motion at the conclusion of all the evidence, which motions were overruled by the court.
The efforts of the Ohio State Medical Association to prevent the unlawful practice of medicine and surgery, as well as the efforts of the Better Business Bureau to protect the public from fraud and trickery, are highly commendable; nevertheless, it is still the law of Ohio that a defendant in a criminal action cannot be convicted on general principles or mere suspicion, and in order to convict it is essential that all material elementsPage 424of the offense charged must be proved beyond a reasonable doubt. That has not been done in the present case, and, therefore, the judgment of the Court of Appeals is reversed and final judgment is entered for the defendant.Judgment reversed.
MATTHIAS and HART, JJ., concur.
TAFT, J., concurs in paragraphs two, three and four of the syllabus and in the judgment but dissents from paragraph one of the syllabus.
WEYGANDT, C.J., ZIMMERMAN and MIDDLETON, JJ., concur in paragraphs one and four of the syllabus but dissent from the judgment.
In order to sustain the conviction in the instant case, it must appear that what the defendant did comes within the description of the language of Section 12694, General Code, reading, "Whoever practices medicine or surgery, or any of its branches before obtaining a certificate from the State Medical Board in the manner required by law."
Admittedly, defendant is not charged with having done anything"before obtaining a certificatefrom the State Medical Board in the manner required by law." Admittedly, she had not one but three such certificates, each authorizing her to practice a particular branch of medicine or surgery.
The statute does not make it a crime to do something amounting to the practice of medicine or surgery before a certificate is obtained authorizing thePage 425doing of such thing. To construe it as so providing is to extend the statute by construction to things not within its descriptive terms.
InStatev.Meyers,56 Ohio St. 340,47 N.E. 138, the first paragraph of the syllabus reads:
"A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute."
This court should not read into the statute words, which it does not contain, in order to make the statute read as this court believes the General Assembly should have made it read.
The certificates "from the State Medical Board" which defendant had did not authorize defendant to practice anything but the limited branches of medicine and surgery specified therein. If she did exceed the authority so given her by those certificates, then the State Medical Board was authorized by the General Assembly to revoke or suspend those certificates. Section 1274-6, General Code. It does not follow that, before such revocation or suspension, she could be convicted under Section 12694, General Code. The words of the latter statute do not state that it shall be a crime for someone having a certificate "from the State Medical Board" to do something beyond the authority granted by such certificate.