The appellant was indicted for unlawfully practicing medicine in the city of Hew York. The indictment • contains three counts: The first charging that the appellant did unlawfully examine, treat and prescribe as a physician for one ■ John Irwin, without being authorized by a license or diploma from any chartered school, State Board of Medical Examiners or medical society. The second count charged that the appellant unlawfully practiced physic, and did unlawfully examine, treat . and prescribe for one John Irwin, as a physician, without being lawfully authorized so to do. The third count charged that the . appellant did unlawfully practice physic, without having first registered in the clerk’s office of the county of ¡New York in the manner and form required by law, and without having so registered as aforesaidj did examine, treat and prescribe for one John Irwin.
On the trial it was shown that a detective in the employ of the ¡New York Medical Society on the 8th of July, 1885, brought a patient who was suffering from skin disease to the office of the appellant; that the appellant looked at him, examined him and gave him a'prescription, for which the witness paid him a fee of seventy-five cents. The prescription was produced and put in evidence. The patient was a boy, then in ■ court, but who was not called as a witness, nor was it shown that he was John Irwin. The people rested upon this evidence, and the defendant’s counsel moved that the court advise the jury to acquit upon the ground that the evidence was insufficient to warrant a conviction. There was no proof of the name of the patient who was taken to the office by the detective, and none "tending to show that his name was John Irwin. The evidence ■ taken together shows that a boy then in court was the person, bu,t it is quite probable that he was not called as a witness, because his name was not that of the person named in the indictment. The offense specifically set forth in the - indictment was that of prescribing as a physician for one John Irwin, and there was not a particle of evidence to show that that offense was *139«committed, nor to show who the patient, in fact, was. There was, therefore, a total failure of evidence to establish the offense ■charged, and the court ought to have granted the motion and instructed the jury to acquit upon the ground that the evidence was insufficient to warrant a conviction. It is very doubtful whether a conviction under this indictment would be a bar to .another conviction for an offense, in prescribing for the same patient But whether that would be so or not is not material, ‘because the proof failed to show the particular crime alleged in the indictment.
On the part of the defense, it was shown that the appellant .is a physician, who has practiced medicine in the city of Hew York for thirty years, and that before he came to this country he practiced medicine in the University of Halle, and in the • College of Medicine and Surgery in Halle, in Prussia; that he underwent an examination for permission to practice medicine .and surgery, conducted by Surgeon-Ueneral Yanderpool, at Albany; that he passed the examination, and received a commission from the State as a medical officer in the volunteer army. He also produced a certificate, signed by the county, clerk, certifying that the appellant, in compliance with chapter 513 of the Laws of 1880, had, on the 27th of June, 1881, duly registered his name and address in the book kept in the county ■ clerk’s office for that purpose.
The court charged the jury,, in substance, that if they believed the evidence given on the part of the prosecution, it was their .duty to convict the defendant of the offense charged in the indictment Yery serious questions arise upon the evidence produced by the appellant, whether or not he was liable to indictment under section 356 of the Penal Code. But it is not ■necessary to discuss or pass upon them, because we are of opin?ion that there was a total failure on the part of the people to jproduce sufficient evidence to justify conviction.
The judgment should be reversed and a new trial granted.
Daniels, J., concurred; Brady, J., concurred in the result