delivered the opinion of the court.
This was an indictment against the defendant for practicing medicine without license, in violation of ftha act “to sustain the credit of the State,” passed 16th February 1847.
*608The indictment contained two counts. The defendant demurred to it. His demurrer to ttie second count was sustained, and to the first was overruled. He then pled not guilty. Upon the trial of this issue, the jury found him guilty and assessed his fine at fifty dollars, the penalty-fixed by the act aforesaid.
Upon the trial, the defendant asked the court to instruct the jury “that unless they believed from the evidence, that the defendant received compensation for his services asa physician, they must find him not guilty. ’’The court refused this instruction, and instructed, “that unless the jury believe from the evidence, that the defendant practiced medicine for compensation and reward, then he is not guilty, but the State is not required th prove the actual receipt of such compensation.”
The defendant excepted to the giving of this instruction, and also to the refusing to give the one asked for by him.
The ruling of the court below, in regard to these instructions, is the main point presented for the consideration of this court. “No person or co-partnership of persons shall follow the practice of law or medicine, in whole or in part as a business, in this State, without first obtaining license to follow such profession, according to the provisions of this act:” See 8th section of the act aforesaid.
The first count of the indictment charges, that the defendant did practice medicine in Washington county aforesaid, as a business, and avers, that he thus practiced by giving and prescribing physic and medicine to divers persons and families, naming them.
There was no proof that he received any compensation for his practice, and the failure of this proof is the principal ground of defence.
The instruction given by the court, requires the jury to believe from the evidence, before they are authorized to convict, “that the defendant did practice medicine for compensation and reward; but also informed them, that the State was not bound to prove the actual receipt .of such reward or compensation,” This is the proper exposition of the offence under the statute, and this brought before the jury the necessary acts to be done, before they could convict. The instruction given, then, was the proper one. There is no error in refusing the defendant’s instruction, nor in giving the one above by the court.
There is nothing in the point, that the jury consisted of eleven jurors only; this was agreed to at the time, by the parties. The indictment •seems to have been drawn without much attention, in a careless and hasty manner, but it is considered, nevertheless, to he substantially good.
The other judges concurring, the judgment below is affirmed.