
    The State of Ohio v. Mueller.
    (Decided April 6, 1931.)
    
      Mr. Gilbert Bettman, attorney general, Mr. Isadore Topper and Mr. Gerald P. Openlander, for plaintiff in error.
    
      Mr. Eldon H. Young and Mr. Carlton B. Shaw, for defendant in error.
   Williams, J.

On March 16, 1930, K. T. Mueller was charged in an affidavit filed in the municipal court of the city of Toledo with violating Section 12694, General Code. Upon trial he was found guilty by a judge of that court, and sentenced to pay a fine of $25 and costs. The defendant prosecuted error to the court of common pleas, and, upon hearing, the judgment of the municipal court was reversed and the defendant discharged. This proceeding in error is brought by the state, as plaintiff in error, and it seeks to have the judgment of the court of common pleas reversed and that of the municipal court affirmed.

It is contended on behalf of the defendant in error Mueller that the state cannot prosecute error to this court from a judgment of the court of common pleas reversing a judgment of conviction and discharging the defendant, and the case of Mick v. State, 72 Ohio St., 388, 74 N. E., 284, is relied upon. That case was decided May 2, 1905. February 28, 1906, the General Assembly enacted Section 7367a, Revised Statutes (98 Ohio Laws, 33). This section was carried into the General Code as Section 13764, and was re-enacted as Section 13459-14, General Code (113 Ohio Laws, 214). This same matter was before this court in the case of City of Toledo v. Allion, 11 Ohio App., 1. The judgment was affirmed in Allion v. City of Toledo, 99 Ohio St., 416, 124 N. E., 237, 6 A. L. R., 426. The Supreme Court apparently did not consider this procedural question worthy of mention. We also call attention to State v. Berry, 13 C. C. (N. S.), 206, 22 C. D., 250, and State v. Blackmer, ante, 98.

The affidavit in the instant case charges:

“That on the 16th day of March, A. D., 1930, at the City of Toledo, in the County of Lucas and State of Ohio and within the jurisdiction of the court one K. T. Mueller unlawfully did advertise and announce himself to be a practitioner of medicine and surgery in one of its branches, to wit, chiropractic, before he had obtained a certificate from the State Medical Board of the State of Ohio in the manner required by law, to wit: That he, the said K. T. Mueller did then and there advertise and announce himself as such practitioner by having, exhibiting and displaying a certain sign on a door of the Spitzer Bldg., Room 447, in the City of Toledo, Lucas County, Ohio, a copy of which sign is as follows:
“447.
“K R. Mueller — D. C. Ph. C.
“Palmer Graduate — Chiropractor.
“10 to 12 — 2 to 4.”

Section 12694, General Code, makes it a misdemeanor for one to advertise or announce himself as a practitioner of medicine and surgery, or any of its branches, before obtaining a certificate from the state medical board in the manner required by law. In the case of State v. Blackmer, supra, we held that a person charged with a like offense could not be properly convicted where the evidence merely showed that the defendant’s name, followed by the word “Chiropractor,” or the letters “D. C.,” was displayed publicly, without any evidence to connect the defendant with the advertising or announcement. In the instant case the evidence 'shows that the accused was occupying the office in the city of Toledo at 447 Spitzer Building on the day in question, and that at that time the sign described in the charge was on the office door. This evidence, uncontradicted, with the further evidence that the defendant was unlicensed, warranted the trial judge in finding him guilty. Considerable damaging evidence, in the nature of conversations with the defendant himself while in his office, was admitted in evidence; but the trial judge later held it incompetent. These conversations, which were wholly competent, amounted to admissions on the part of the defendant that he was, at the time, engaged in the illegal practice of medicine. The defendant in error was properly convicted and the judgment of the common pleas court will therefore be reversed and that of the municipal court affirmed.

Judgment reversed.

Richards, J., concurs.

Lloyd, J., not participating.  