We concur in the conclusion as to a reversal of this judgment on the ground that the state is held to an election, and on that point we adopt the opinion as prepared by BRICKEN, P.J.
We are not, however, of the opinion that, in a prosecution under this statute, the state must either allege or prove that the person treated in fact had a disease. We think that the construction of the statute by the presiding judge is entirely too narrow to meet the evil aimed at by the Legislature. The statute reads: "Any person who treats, or offers to treat diseases of human beings in this state by any system of treatment, whatsoever," etc. Acts 1915, p. 661. Whether the person receiving the treatment, or offered to be treated, has a disease or not, does not relieve the person treating, or offering to treat, from criminality. The fact that one claiming to be able to treat diseases of the human body offers to treat a person for a disease which that person did not have would be the worst kind of "quackery," and was one of the things aimed at by the statute. Again, if it should be held that the person offered to be treated must, in fact, be affected by the disease offered to be treated, each case would present a case for the highest and most technical investigation, involving diagnoses and other questions of pathology and scientific medicine. Such, certainly, was never in the minds of the Legislature.
We concur in the reversal, but the above is the ruling of this court on the refusal of the trial court to give at the request of defendant the affirmative charge.