
    The People of the State of New York, Respondent, v. Joseph Somme, Appellant.
    First Department,
    June 7, 1907.
    Crime—practicing medicine without- license — section 153 of the Public Health Law construed — conviction affirmed.
    The burden is upon one charged with practicing medicine without a license to show that he has been duly licensed- or comes within the exemptions provided by the statute. He must prove either registration, or license to practice.-
    The clause in section-153 of the Public Health Law prohibiting., the practice of medicine “ without having legally received the medical degree ” should be construed to prohibit practice without having received ,a medical degree which legally entitles the holder to practice. Heneé, a degree conferred in a foreign State, but not recognized by the Board of Regents, does- not entitle one to practice medicine. ,
    Ho person is a legal practitioner of medicino in this State unless he comes within - one of three classes; first, those who registered diplomas prior to 1890; second, 
      those who registered licenses since 1890; and, third, those who received certificates from the censors of medical societies under chapter 436 of the Laws of 1874.
    One who prefixes “ Dr.” to his name, and performs operations for money, and advertises as a specialist for chronic difficult diseases, etc., without being licensed to practice in this State, is properly convicted of a violation of section 153 of the Public Health Law..
    Ingraham, J., dissented, with opinion.
    Appeal by the defendant, Joseph Somme, from a judgment of the Court of Special Sessions of the First Division of the city of New York, rendered on tile 21st day of June, 1906, convicting the defendant of a violation of section 153 of the Public Health Law.
    
      Willard G. Stanton, for the appellant.
    
      Robert S. Johnstone of counsel [William Travers Jerome, District Attorney], for the respondent.
   Clarke, J.:

Defendant1 was convicted by the Court of Special Sessions for a violation of section 153 of the Public Health Law in that on the 3d of April, 1906, in the county of t New York, he did unlawfully, without having'legally received a medical degree and without having received a license according to law which constituted at the. time an authority to practice medicine under the laws of this State then in force, then and there assume and advertise the title of doctor and M. D. in such a manner as to convey the impression to one Katie Farenga that he, the said. Joseph Somme, was then and there a legal practitioner of medicine.

The evidence showed that there was a sign in the defendant’s window, “ Dr. Somme, Osteopath,” and on the bell “ Dr. J. Somme.”. The complainant testified that she said to defendant: “ ‘ Are yon Dr. Somme?’ He said, ‘Yes.’” She then described her condition to him, the defendant asked some questions and in reply to her query, “ Can you do anything for me ? ” said', “ ‘ yes, I can perform an operation.’ I said, ‘ cannot you give me some medicine ? ’ He said, ‘ no, medicine will do no good.’ I-told him I was afraid of an operation. He said,- ‘ the only thing for you is a good scientific operation.’” The defendant handed her his card which read, “Dr. Somme, 334 Central Park West, between 93rd and 94th streets, New York. Hours 12-5 and by appointment.” She said, “ ‘How much do you charge for an operation.?’ He said,‘I charge $50, but seeing you are not a rich woman I will charge you only $25.’ ” Upon another occasion she saw him and after a conversation left two dollars on deposit. "

She saw him'a third time and asked to have her husband present at the operation. He said : “ That is absurd. I could not permit any one to witness an operation like that. * * . * ' Don’t you know I could get myself into a lot of trouble ? I could not permit such things. My patients do not even tell their husbands about it.” The defendant advertised in the newspapers as follows: “ Dr. J. Somme, Osteopath. Specialist for all chronic difficult diseases: Safe, scientific treatment. 334 Central Park West, near 93d street.”

To another witness defendant said he was a specialist and wanted to perform an operation for twenty-five dollars and said the advertisement was his. The defendant testified in his own behalf.: “ I attended a medical school in Indianapolis called. the College .of Medicine and Midwifery ; I am a graduate in medicine; I attended the regular' sessions there; I passed an oral and written examination ; I received a diploma as doctor- of medicine; I attended the final examination.” He admitted that he had seen the first witness upon two occasions. ' Section 153 of the Public Health Law (Laws, of 1893, chap. 661, as'amd: by Laws of 1895, chap. 398, and Laws of 1905, chap. 455)- provides that: “ Any person who shall append the letters M. D. to his or her name (or shall assume or advertise the title of doctor or any title which shall show or tend to show that the person assuming or advertising the same is a practitioner of any. of the branches of medicine) in such a manner-as to convey the impression that he or she is'a legal- practitioner of medicine or . of any of its brandies without haying legally receivéd the medical . degree .or without having received a license which constituted at that time an authority to practice medicine under the laws of this State then in force, shall be guilty of a misdemeanor.”

It is established by the cases in this State that in a prosecution against one for practicing without a license the burden is on the defendant to show that he has been duly licensed or comes within the exemptions provided by the statutes. (22 Am, & Eng.Ency. of Law [2d ed.], 787.)

“ The obligation rested upon him to prove either registration or license to practice, else he stood without any defense. The law casts this burden upon him. (People v. Rontey, 21 N. Y. St. Repr. 173; affd., 117 N. Y. 624, on opinion below.) ” (Suffolk County v. Shaw, 21 App. Div. 146, 150.)

It was admitted that the defendant possessed the diploma of a medical school in Indianapolis called the College of Medicine and Midwifery. He did .not-produce or offer to produce any other authority for the assumption and use of the title of doctor or M. D. The gravamen of the section of the statute under which he was prosecuted is that he should not assume or advertise that title in such a manner as to convey the impression that he was a legal practitioner of medicine. The evidence was sufficient as to the manner of the use. Putting up a sign, advertising as a specialist for all chronic, difficult diseases, discussing symptoms .with a proposed patient, advising an operation and receiving money in part payment in advance therefor are facts establishing an invitation to the public to some to him for medical treatment, and clearly convey the impression that he was a legal practitioner of medicine or some of its branches.

The question involved in the case at bar is, what do the words “ without having legally received the medical degree ” mean % The answer requires a careful examination of the Public Health Law. Section 140 of chapter 661 of the. Laws of 1893 provides that “Ho person shall practicó medicine after September first, eighteen hundred and ninety-one, unless previously registered and legally authorized, or unless licensed by the Regents and registered as required by this article.” Section 145 (as aind. by Laws of 1895, chap. 636; Laws of 1896, chap. Ill; Laws of 1901, chap. 646, and Laws of 1902, chap. 243) provides for the admission of candidates to examination for the license to practice medicine, and provides that the candidate must present satisfactory evidence that he (1) is of lawful age ; (2) is of good moral character; (3) has the proper preliminary education necessary to receive the degree of bachelor or doctor of medicine in this State; (4) has studied medicine for a pre..scribed period of time in a medical school registered as maintaining at the '.time a satisfactory standard, and (5) has either. received the . degree of bachelor or doctor of medicine from some registered medical .school' (that is, under the definition at the head of the article a medical school, college, or department of a university, registered by the Regents as maintaining a . proper medical stand-' ard, and as legally incorporated), or a diploma or-license conferring 'full right to practice medicine in some foreign country.'

Section 148 provides that “ On receiving from a State Board (that is, a board of medical examiners of the State of New York) an official report that an applicant has successfully passed the examinations and is recommended for license, the'Regents shall issue to him if in their judgment lie is .duly qualified therefor, a license to practice medicine!” Sections 149 and 150 provide for registration of the license in the county whére the licensee intends to practice, before commencing practice.

' Section 151 provides that “ Hereafter no person shall register any authority to practice medicine unless it has been issued or indorsed as a license by the Regents: Ho such registration shall be" valid unless the authority registered constituted, at the time of registration, a license under the laws’ of the State then in force. .Ho diploma or license conferred on a person not actually in attendance at the lectures, instruction and examinations of the school conferring the same, or not possessed, at the time of its conferment, of .the requirements then demanded of medical students in this State-as a condi. tiomof their being licensed so to practice, and no registration, not in 'accordance with this article shall be lawful; authority to practice medicine.”

This law is a codification of the previous laws bearing upon the subject. From an examination of the history of the growth.-of this legislation and the provisions hereinbefore alluded to, it follows that no person is now a legal -practitioner in the. -State .of New York unless he comes within’ one. of these three, classes: First, those who registered diplomas prior to 1890; second, ■ those who registered licenses since 1890; and third,, a small class who received certificates from the censors,of medical societies under chapter 486. of the Laws of 18-74 ; because section 140'(supra) provides that no person shall practice medicine after September 1,-1891,. unless previously registered and legally authorized, or unless licensed by the Regents and registered as required by this- article. (Public Health Law, art. 8.)

This defendant is not within any. of the three classes. His claim is that he has a degree of M. D. from an Indiana collegé.. If it be conceded that the college was a legitimate institution with power to grant the degree, yet that'degree is worthless as a license to practice medicine in New York and is worthless as á preliminary requirement to take the Regents’ examination for a license. By the legislation referred to a medical school diploma conferring the title M. D. does not serve as a license to practice medicine in New York. Its holder is required to pass the Regents’ examinations. He cannot be admitted to the examination unless he has received the degree from some institution approved by the Regents. If he succeeds in the Regents’ examination a Regents’ license is issued which is. the sole authority to practice medicine' and which must be registered in the county clerk’s office before beginning practice.

Therefore, when we consider that the statute prohibits the assumption or advertisement of the title of doctor in such a manner as to convey the impression that he or she is a legal practitioner of medicine, or of any of its branches, without having legally received the medical degree, the words “ without having legally received the medical "degree ” are meaningless, unless interpreted as meaning “having received a medical degree such as legally entitled the holder to practice.”

It is now the settled policy of the State to hedge admission into the learned professions with strict requirements in order to secure, so far as possible, competent services to patients and clients from physicians and lawyers, and the statutes in regard to admission to the bar, as well as to the practice of medicine, have, to some extent, gone hand in hand. Formerly the degree from the law school or the medical school in and of itself entitled the holder to admission to practice. How in both professions it is merely a preliminary to examination. Light is- thrown upon the -legislative intent in the prohibitions in this statute of assumption and advertisement of the title M. D. or doctor by the cognate statute in reference to lawyers. Section 4 of chapter 165 of the Laws of 1898 (as amd. by Laws of 1899, chap. 225) provides that: “ On and after J uly first, eighteen hundred and ninety-nine, it shall be unlawful for any person to practice or appear as an attorney-at-law, ,* * *. to hold himself out to the public as being entitled to practice law as aforesaid, or to assume to be an attorney of counsellor-at-law,-of to assume,.use or" advertise the title of lawyer, or attorney and counsellor-at-law, or attorney-at-law, or counsell'of-at-law, or attorney, or counsellor, dr attorney and counsellor, or equivalent terms in any language, in such manner as to convey the impression that he is a legal practitioner of law or in any manner tp advertisé that lie cither alone Or’together "with any other persons or person, has, owns, conducts of .maintains a law- office or law and "collection office, or office of any kind for the practice of law, without having first been duly and regularly"licensed and admitted . , to practice law in the courts of record of this State.” , The words “ in such manner as to convey tlie'i-mpressioti that he is á legal practitioner of law” are .similar, to the words of tliñ statute under-consideration, “In such a manner as to convey the impression that he or she is a legal practitioner of medicine.”

Heitlref the lawyer nor" the doctor coming from another State, or. holding a degree ■ of a law or medical school in another State", can hold himself out or advertise in such -a manner as to convey 'the ■ impression that he is a legal practitioner of either profession, unless duly and legally licensed- and .admitted to practice in this State under our laws, without .being guilty of a misdemeanor. ■

As said by the Court of Appeals in Ottaway v. Lowden (112 N. Y. 129), in reviewing" the Public Health Law, “these, acts ,*• * * show throughout" an intent on the part of the Legislature to protect the people from imposition by the unlearned and unskill, ful. who may nevertheless obtain from institutions in -other States diplomas purporting to assure competency. To that end -the certificate of the Board of Regents, based upon the unanimous recommendation of a board "if medical examiners, is exacted, and the requirements of license and registration are insisted upon * ■*

: L think this defendant comes within the spirit -and the letter of the statute and that the judgment-of conviction was proper.

The judgment appealed from .should, therefore, be affirmed,

■ Patterson, P. J., McLaughlin and Lambert, JJ., concurred,; Ingraham, J., dissented..

Ingraham, J. (dissenting):

The information alleges that- the defendant without having legally received a medical degree and without having received a license according to law which constituted at the time an authority to practice medicine under the laws of this State then in force, did then and there assume and advertise the title of Doctor and M. D. in -such a manner as to convey the impression to one Katie Farenga, that he, the said Joseph Somme, was then and there a legal practitioner of medicine, in that he, the said Joseph Somme, did then and there state to the said Katie Farenga that' he was then and there a physician and being addressed as Doctor Somme,’ did respond to the said title and name, and did permit, suffer, cause, and procure himself to be called 1 Doctor ’ and on a'window in certain premises there commonly called number 334 Central Park West, did have a certain sign and writing in words following, to wit, 6 Dr. and Mrs. Somme.’ ” The prosecution is based upon section 153 of the Public •' Health Law (Laws of 1893, chap. 661, as amd. by Laws of 1895, chap. 398, and Laws of 1905, chap. 455). That section provides that “ any person who shall append the letters M. D. to his or her name, (or shall ■ assume or advertise the title of doctor or any title which shall show or tend to show that the person assuming or advertising the same is a practitioner of any of the branches of medicine), in such a manner as to convey the impression that he or she. is a legal practitioner of medicine, or of any of its branches, without having legally received the medical degree, or without having received a license which constituted at that time an authority to practice medicine under the laws of this State then in force, shall be guilty of a misdemeanor.” The section also provides a penalty for practicing, medicine within this State by one who is not lawfully authorized and so registered according to law ; a penalty for any person who shall fraudulently obtain a medical diploma or shall practice medicine under cover of a 'medical license illegally or fraudulently obtained; and also a penalty for ' one who, after conviction of a felony, shall attempt to practice medicine.

If this charge had been one of practicing medicine.in violation of the Public Health'Law, a different question .would have been presented. As I read the section, however, the prohibition against a person assuming or advertising the title of doctor in such a manner ■as to convey the impression that lie or she is a legal.practitioner of medicine only applies where the person has not legally received the medical degree or has not received.a license which' constituted at that time, an authority to practice medicine under .the: laws' of this • State. A person who has- legally received a medical degree is not prohibited from calling himself a doctor because he had hot also-been authorized to practice medicine. The construction, given to this section by the prevailing opinion treats the words.without having legally received the medical degree ” as synonymous with the second clause, :so that under this construction any foreign physician coming to this State and appending to liis name the letters' M. unless lie had received a license which authorized him to practice medicine . in this State, would be guilty of a misdemeanor, a construction which' séems to me to beat variance with the express intention of the Legislature. A person has legally received the medical degree ”' when •that degree has been conferred upon him by an institution author- '■ ized by law to grant the degree of doctor of medicine. Section 148 of the Public Health. Law provides for a license to practice medicine and section 153 prohibits any one from practicing medicine in this State without having obtained such a license. But a person, is , entitled to call himself a doctor if lie has received such a license or if he has legally, received the medical degree. A legal degree of e ■doctor of medicine seems to me to mean, one issued by an institution authorized by the law creating it to. issue sucji degrees. I think, therefore, that' this defendant was entitled;, to. show that he had ' legally received the medical degree, and the degree that he offered in evidence together with the proof that the institution which had conferred it was'an institution lawfully authorized to grant a degree, having been excluded, constituted error which requires a reversal of the judgment: • '

A clear'distinction between what is -necessary to entitle.a person to practice medicine and what justifies a person in assuming the title of doctor of medicine seems to me to have been'entirely lost sight of in the prevailing opinion. ■ There is nothing to justify the construction that a degree of doctor of medicine, in order to be legal, must ■ Iiáve been issued by a medical school registei’ed by the Regents as maintaining a proper medical standard and as legally incorporated. The mere fact that a degree produced by the defendant “is worthless as a license to practice -medicine in NTew York, and is worthless as a preliminary requirement to take the Regents’ examination for a license ” may be conceded ; but it does not at all follow that it is worthless to justify him in appending the letters M. D.” to his name or assume or advertise the title of doctor in such a manner as to convey the impression that he is a legal practitioner of medicine.

Nor is there any analogy between a person assuming the title of doctop of medicine and one claiming to.be an attorney and counselor at law, for admission to. practice law is an appointment to a public office, and no one is entitled to call himself an attorney and counselor at law unless he has been duly admitted to practice.

I think, therefore, this judgment should be reversed and a new trial ordered.

Judgment affirmed.  