Being convinced that the judgment should be reversed and the action dismissed, I dissent from the majority for the following reasons:
I. The court erred in admitting in evidence the newspaper advertisements. No foundation was laid for their admission. The original manuscript was not produced, nor was it shown that it could not be produced.
"And when the object is to charge a particular advertisement on a particular person as its author, it is necessary to produce the original manuscript. It is only when the latter is nonproducible that the printed copy can be received." 2 Wharton's Criminal Evidence (10th ed.), § 542; also 11th ed., § 804, footnote.
Furthermore, there was no evidence that appellant was the author of the advertisements or that he directed their publication. In State v. Dunham, 31 Wn. 636, 72 P. 459, which was a prosecution for practicing medicine without a license, the state introduced a newspaper advertisement purporting to be that of the defendant. Holding that such evidence did not establish the crime, this court said:
"Clearly, there is here no proof of the crime charged. As against the presumption of innocence, it cannot be presumed from the mere fact that the advertisement appeared in a paper that it was authorized by the appellant, nor will it be presumed that he was the person named in the advertisement, though the name therein and his name be the same. Without the aid of such presumptions, there is no evidence in the record of guilt, and hence no evidence upon which a jury could found a verdict of guilty."
See, also, 4 Wigmore on Evidence (2d ed.), 578, § 2150; 3 Jones Commentaries on Evidence (2d ed.), 1817, § 989; 22 C.J. 929, §§ 1137, 1138; Collins v. State, 75 Tex.Crim. App. 534,171 S.W. 729. *Page 642
The majority recognize the law as just stated, but seek to escape its controlling effect on the theory that the testimony of one of the state's witnesses established the connection of appellant with the Sing Herb Co. Therein is the tacit admission that the advertisement is the vital element in this case, and that, without it, conviction could not have been obtained; therefrom, also, must arise the presumption that the evidence, if improperly admitted, was prejudicial.
In my opinion, the vice of the position taken by the majority is contained in the inference that appellant's connection with the Sing Herb Co. renders competent and admissible that which, under the rules of evidence, is not. If it be contended that the advertisement was that of the Sing Herb Co., still the state did not lay a foundation for its introduction, because, as already shown, the original manuscript was not produced or accounted for, nor was it shown that the Sing Herb Co. directed its publication. The fact that appellant was connected with the Sing Herb Co. has nothing to do with the admissibility of the evidence against appellant in the absence of a showing that the Sing Herb Co. authorized the advertisement. The state did not show that the published advertisement was authentic or authorized by either the Sing Herb Co. or appellant. Without this vital connecting link, the offered evidence was inadmissible.
II. The court erred in overruling appellant's challenge to the sufficiency of the state's evidence. The statute under which appellant was charged reads as follows:
"Any person who shall practice or attempt to practice, or hold himself out as practicing medicine and surgery in this state, without having, at the time of so doing, a valid, unrevoked certificate as provided in this act, shall be guilty of a misdemeanor. . . ." Rem. Rev. Stat., § 10018 [P.C. § 3741]. *Page 643
This section of the statute does not define what practicing medicine is. In so far as any definition of that term is furnished by any statute, it is found in Rem. Rev. Stat., § 10008 [P.C. § 3732], on which both counsel rely. By that section, the certificate to practice medicine authorizes the holder thereof
". . . to use drugs or what are known as medicinal preparations in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all other methods in the treatment of diseases, injuries, deformities, or other physical or mental conditions."
In the information, appellant was charged as follows:
"He, said H.S. Low, in the County of King, State of Washington, on or about the 18th day of February, 1937, wilfully and unlawfully did practice and hold himself out as practicing medicine in this, that he, the said H.S. Low then and there did treat and pretend to treat and heal one Pat Hughes for disease and physical condition, to-wit: by the use of drugs, medicalpreparations, without having at the time of so doing a valid unrevoked certificate issued by the Board of State Medical Examiners of the State of Washington, . . ." (Italics mine.)
The crime charged is one that did not exist at common law, but is purely statutory. The state was therefore under the burden of proving beyond a reasonable doubt that appellant was operating within the prohibition of the statute. State v. Carey, 4 Wn. 424,30 P. 729. The statute, being penal, is to be strictly construed. State v. Eberhart, 106 Wn. 222, 179 P. 853;State v. Hart, 136 Wn. 278, 239 P. 834; State v. Herr,151 Wn. 623, 276 P. 870; State v. Diebold, 152 Wn. 68,277 P. 394; 16 C.J. 1360, § 6.
To sustain the charge contained in the information, the state was required to prove that appellant treated the supposed patient "by the use of drugs, medical *Page 644 [medicinal] preparations." The state's evidence discloses that what appellant did was to supply the state investigator, who acted as a prospective patient, with a diet sheet and two bottles containing herbs. It was not shown that the herbs consisted of or contained drugs or medicinal preparations, and it cannot be presumed that they did. No chemical analysis of the contents of the bottles was made, nor was there any proof whatever that the bottles contained the prohibited substances. The state having failed to prove that appellant used drugs or medicinal preparations, as charged, the challenge to the sufficiency of the evidence should have been sustained.
Seemingly in answer to what has just been said and in opposition to the contention of appellant, the majority say that it makes no difference what the contents of the bottles were, and that it was unnecessary to have an analysis of the liquid made, because appellant was at all events guilty of holding himselfout as practicing medicine. In other words, if the bottles contained milk or even water, appellant was nevertheless guilty under the terms of the statute. The difficulty with that position is that the charge against appellant was specific. It was alleged that he
". . . wilfully and unlawfully did practice and hold himself out as practicing medicine in this, that he, . . . then and there did treat and pretend to treat and heal one Pat Hughes for disease and physical condition, to-wit: by the use of drugs,medical preparations, . . ." (Italics mine.)
The very essence of the charge is that appellant used drugs or medical preparations, and that was the very thing that the state failed to prove.
III. The court erred in giving the following instruction:
"The term `drug' shall include any substance or mixture of substances intended to be used for the cure, *Page 645 mitigation or prevention of disease of either man or other animals."
Rem. Rev. Stat., § 6145 [P.C. § 2536], defines drugs as follows:
"The term `drug,' as used in this act, shall include all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use,and any substance or mixture of substances intended to be usedfor the cure, mitigation or prevention of disease of either manor other animals . . ." (Italics mine.)
In its instruction, the court limited itself to that part of the statute which I have italicized. By so doing, and without making any qualifications, the court gave the jury to understand that any substances or mixture of substances used as a cure or prevention of disease was to be considered as a drug. Reverting to what has already been suggested, the word "drug" would then equally apply to any article of food or drink, no matter how innocuous it might be. Under that interpretation, anyone who should treat disease by a food diet or any form of drugless healing would be guilty of practicing medicine. I do not believe that any such construction is tenable.
The sum and substance of the matter is that the state mighthave proved appellant guilty of the offense charged, had it made its proof competent and admissible, but it wholly failed to do so.
I dissent. *Page 646