
    Supreme Court—General Term—First Department.
    
      March, 1889.
    PEOPLE v. FULDA.
    Practicing Medicine Without a License or Diploma.—Charge to the Jury.—Burden of Proof.
    Upon the trial of defendant for practicing medicine without a license, contrary to section 356 of the Penal Code, it is not erroneous to charge the jury that if the evidence satisfies them beyond any reasonable doubt that the defendant practiced medicine at the time charged, they should convict him unless they are satisfied that at such time he had a license authorizing; him so to do.
    When, upon such a trial, the practice of medicine by the defendant is proved by the prosecution, the burden of proof is upon defendant to show that he had a license or diploma,, as required by the statute.
    Neither a certificate that the defendant bad passed)-a limited' course of study in a medical school in Prussia,,nor hi»- having; obtained a commission as medical officer ■ im the- New York, Volunteers is a license or diploma within the statute (Penal' Code, § 356).
    The fact that the defendant practiced medicine before the enact-ment of the statute (Laws of 1874, eh. 436; Penal Code, § 356) does not restrict the power of the statute to compel him to take out a license in order to justify his practicing subsequent to the enactment of the law.
    Appeal by defendant, Albín Fulda, from a judgment of the Court of General Sessions of the City of New York, Hon. Bufus B. Cowing, presiding, entered upon a conviction, October 19, 1886, of defendant, for the illegal practice of medicine.
    Defendant had been previously tried under the same indictment, and the conviction was reversed upon an appeal reported in 4 N. Y. Crim. Rep. 133. Subsequently the defendant was tried, convicted, and sentenced to pay a tine of $50, from which judgment this appeal is taken.
    
      A. Suydam, for defendant, appellant.
    
      McKenzie Semple, for the people, respondent.
   Van Brunt, P. J.

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 íauthorizing 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 New "York since 1858; that he was naturalized as a citizen in 1868■; that he had received medical education at the uni"versities of Halle and Jena, 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 New "York Volunteers, and received a commission after such examination as assistant surgeon in one of the regiments of the New 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, if he practiced 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 defend, ant 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 limited 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 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 reference 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 right, 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.

Note.—It is a well-settled rule of criminal law that where a statute makes the pursuit of any calling or business without the first obtaining of a license illegal it is sufficient for the prosecution in the first place to prove that defendant carried on that business or occupation, without showing that he had no license, and the burden is then cast upon the defendant to show that he had a license.

Indictment.—In such a ease if there is, an exception to the offense declared by the statute, it need not be stated in the indictment that the defendant is not within the exception. People v. Jefferson, 3 N. Y. Crim. Rep. 573.

Constitutionality.-—Statutes requiring that physicians should ¡have a diploma or license are constitutional. People v. Phippin (Mich.), 37 N. W. Rep. 888.

The State, in the exercise of its power to provide for the general welfare of its people, may exact from parties, before they can practice medicine, a degree of skill and learning in that profession upon which the community employing their services may confidently rely, and, to ascertain whether they have such qualifications, require them to obtain a certificate or license from a board or other authority.competent to judge in that respect. If the qualifications required are appropriate to the profession and attainable by reasonable study and application, their validity is not subject to objections because of their stringency or difficulty. Dent v. West Virginia, 129 U. S. 114.

All concur.

And it was held in this last case, as in the case at bar, that a statute requiring a license or diploma might be applied to one practicing at the time of the passage of the act, and that it did not deprive him of his estate or interest in the profession without due process of law.

Evidence.—Where defendant exhibited a sign as “Dr.-, Magnetic Healer,” visited sick persons and treated them and made, a certificate of death and a medical practitioner’s sworn statement, this is evidence that he had held himself out as a medical practitioner. People v. Phippin (Mich.), 37 N. W. Rep. 888.

Defendant issued circulars signed “Dr. M. 0. Benham,” claiming that his “ treatment ” of his “ patients ” would effect a complete cure of the opium habit; also testimonials from former “patients ” addressed to him as “Doctor;” the caption on the bills and receipts given by him was “ Office of Dr. M. 0. Ben-ham.” This was held to be evidence of practicing medicine. Benham v. State (Ind.), 18 N E Rep. 454.

General Subject.—This is well discussed in the case of the People v. Phippin (Mich.), 37 N. W. Rep. 888, already cited.  