Hitchcock v. State

Hammond J., delivered the opinion of the Court. The appellant appeals from judgment and sentence that followed conviction by a jury in the Criminal Court of Baltimore of the unlawful practice of medicine. The appellant is a graduate of a college of naturopathy and has devoted much of his life to its teaching and practice. It is stipulated that he did not have a license to practice medicine in the State of Maryland and that he has never been registered with the Clerk of the Circuit Court for Baltimore County, where he lives, or with the Clerk of the Circuit Court of Baltimore City, where his office has been, in the book required by law to be kept by said Clerks for the purpose of registering medical licenses.

The testimony shows that on six occasions a policewoman, under a fictitious name, visited appellant’s office, that on these visits he used the title of doctor and attempted to diagnose and treat her for ailments, some of which she had suggested to him and others which he said he had discovered by his activities. In making his diagnosis, he used what was said to be an electronic machine that would disclose the condition of her muscles, tissues and nerves, as well as whether her body was deficient in certain necessary vitamins and minerals. She was told that she had a nutritional anemia deficiency, as well as an enlarged spleen. She paid for the diagnosis.

On two occasions she received an electric diathermy treatment for the spleen condition, for which she paid. The appellant prescribed and sold her vitamins. He took a urine specimen for the purpose of analysis. While one of the treatments was going on, a police officer entered the office and made the arrest.

Appellant admitted freely that he held himself out as a natural healer and that he had practiced naturopathy in Baltimore continuously since 1938 and that he was practicing at the office where he was arrested. It is urged upon us that the trial court committed reversible error in failing to grant a motion for a directed verdict and in refusing to permit covmsel for the accused to argue to the ²⁷⁸ jury the constitutionality of the act under which he was charged. Further claims are that because of newspaper articles about the trial while it was going on, a mistrial motion should have been granted and that the Supreme Bench of Baltimore abused its discretion in denying a new trial for improper conduct of jurors. In his claim that a verdict should have been directed for want of evidence, appellant relies on the argument that the practice of naturopathy is not the practice of medicine, that at the time the Maryland Medical Practice Act was adopted in-1888 naturopathy was unknown and, so, obviously, the act was not intended to apply to it.

His crowning argument on this point, which we will discuss first, is that an English statute passed in 1542, 34 and 35 Henry 8 c. 8, pertaining to “Natural Healers”, was in effect in Maryland on July 4, 1776, and has continued to be the law of Maryland. The statute relied on permitted those with knowledge of the “nature, kind, and operation of certain herbs, roots and waters, and the using and ministering of them * * * to practice, use and minister * * *” them, notwithstanding any other statute to the contrary, particularly 3 Henry 8 c. 11 (1511) requiring the licensing of “Physicians and Surgeons”. We pass the obvious inconsistency in appellant’s argument, the inconsistency that he says naturopathy was unknown in Maryland when the Medical Practice Act was adopted, while at the same time claiming it has been recognized continuously by statute since Colonial Days. Article 5 of the Declaration of Rights of the Maryland Constitution provides that the inhabitants of the State are entitled to the “benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Daw or Equity * * There is nothing to show or to indicate that the natural healers act ever became the law of Maryland, or that by experience it was found applicable locally or that it was introduced, used or practiced by the courts of law or equity.

Chancellor Kilty in 1810 in his “Report of All Hnglish Statutes” in force in Maryland ²⁷⁹ lists both the natural healers act and the act as to physicians and surgeons as among those that had never been found applicable in Maryland — the first at page 76, and the second at page 70. If it be assumed for the argument that the natural healers act ever was in force, it is clear to us that it was repealed by the passage of the Medical Practice Act (Acts of 1888, Chap. 429). The Medical Practice Act belongs to the class of legislation that embraces a complete scheme of regulation for a given subject. In such case, the courts have taken the view that the new law is a substitute for existing laws on the subject, and repeals those earlier laws.

Where the Legislature undertakes to deal with the whole subject matter, there is an exception to the general rule that repeal by implication is not favored, although it has been said in such cases the repeal is not really by implication, but is actual, although not expressed. Montel v. Consolidation Coal Co., 39 Md. 164, 171 ; State v. Gambrill, 115 Md. 506 ; State v. American Bonding Co., 128 Md. 268, 272 ; Ferry Corp. v. Queen Anne’s County, 160 Md. 398, 405 ; State v. Coblentz, 167 Md. 523, 527 ; LaFontaine v. Wilson, 185 Md. 673, 681 . The other arguments of appellant as to his right to a directed verdict were answered fully by the opinion of this Court in Aitchison v. State, 204 Md. 538 , certiorari denied, 348 U. S. 880 , 99 L. Ed. 692 , where a conviction for practicing naturopathy was upheld. An attack on Federal grounds on the Maryland Medical Practice Act by the appellant here was rejected by Judges Soper, Chesnut and Thomsen in Hitchcock v. Collenberg, 140 F. Supp. 894 .

Judge Thomsen’s opinion gives a detailed history of appellant’s background and activities, as well as of the pertinent litigation as to naturopathy and its relation to the practice of medicine, both in Maryland and elsewhere. The Aitchison opinion pointed out that Code, 1951, Art. 43, Sec. 138, defines a practitioner of medicine as any person “* * * who shall append to his or her name the words or letters ‘Dr.,’ ‘Doctor,’ ‘M.D.,’ or any other title * * * with the intent thereby to imply that he or she is engaged in the art or science of healing, or in the practice of medicine * * * or who shall operate on, profess to heal, prescribe for, or otherwise treat any physical or mental ²⁸⁰ ailment or supposed mental ailment of- another * * The Court concluded that the Legislature intended that the “practice of medicine” was to include “any practice of the art of healing disease and preserving the health other than those special branches of the art that were expressly excepted.” It was noted that the Legislature prescribed special regulations for the practice of osteopathy, chiropody, and chiropractic, but that it has made no such provision for the licensing of naturopaths, despite the fact that bills frequently have been introduced in the Legislature to permit and regulate the practice of naturopathy. It was said: “The very fact that no such legislation .has been passed indicates that the Legislature has not intended thus far to permit naturopaths to practice without a license. The Legislature has been careful to prevent medical treatments without the protection afforded by some official regulatory board.” The conclusion of the Court was that in view of the breadth of the language employed by the Legislature to define the practice of medicine and its failure to exempt naturopaths from the definition, “we are compelled to hold that the Medical Practice Act prohibits a person desiring to engage in the healing art by the practice of naturopathy from doing so without a license from the State Board of Medical Examiners.” Since there was evidence that the appellant used the word “Doctor” in such a way as to imply that he was engaged in the art or science of healing, as well as evidence that he diagnosed supposed ailments of the policewoman and treated her for those ailments and prescribed for her, it is clear that the case properly went to the jury.

The appellant would seem to have removed any doubt on the' question, for, when asked “Do you treat physical ailments of your patients”, he replied: “Yes sir, I do.” Appellant’s claim that his counsel should have been allowed to argue to the jury that the Medical Practicé Act was unconstitutional because Art. XV, Sec. 5, of the Maryland Constitution provides that “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact * * is without validity. The quoted words first appeared in the Constitution of 1851, and their meaning was passed upon in ²⁸¹ 1858 in Franklin v. State, 12 Md. 236, 243 , adversely to appellant’s contention. Judge Bartol wrote the opinion of the Court in the Franklin case and Chief Judge LeGrand filed a separate opinion. Both opinions agreed that it was apparent from the debates of the Constitutional Convention that the section in question was adopted because the judges throughout the State had differed in their views as to the extent of the rights of the jury in criminal cases.

Seemingly, most of the judges had felt the jury to be the judges of the law in such cases, while some had felt, and held, that the Court must deal with the law, leaving the facts only to the jury. It had been argued to the Court that the indictment was defective, and further, that if it were not, there had been error below in not allowing counsel to argue to the jury that the statute under which the appellant was tried was unconstitutional. It was held that the indictment was deficient but Chief Judge LeGrand, noting that the point was not directly presented for decision, declared that it was proper that the true meaning of the new provision in the Constitution of 1851 should be expressed. He