New York County NyArchives Court.....People, Of State Of N Y Vs. Albin Fulda 1889
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Source: Reports Of Cases - N Y
Written: 1889

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALBIN FULDA, Appellant.

Duty, under section 356 of the Penal Code, of a physician to procure a license—
what is not such license or diploma under that section.

Upon the trial of the defendant upon an indictment charging him with practicing 
medicine without a license authorizing him to practice from some chartered 
school, State board of medical examiners or medical society, as was required by 
section 356 of the Penal Code, the evidence showed that he had been practicing 
medicine in the city of New York since 1858; that he was naturalized in 1868; 
that he had received a medical education at the universities of Halle and Jena, 
but that he had never received a full diploma, such as was given by the 
universities to their graduates upon the completion of their course of study; 
that he had also passed an examination for a commission as a medical officer in 
the New York volunteers, and received a commission, after such examination, as 
assistant surgeon in one of the regiments of the New York infantry.

Held, that the court did not err in charging the jury, that if the defendant 
practiced medicine at the time and place, and in the manner set forth in the 
first count of the indictment, they should convict the defendant unless they 
were satisfied that at the time he had a license authorizing him to practice 
from some chartered school, State board of medical examiners or medical society.

The court further charged that if the practice were proved, the burden was 
thrown upon the defendant to prove that he had a license or diploma from such 
school, State board of medical examiners or medical society.

Held, that the charge was correct.

That the evidence introduced did not disclose any such license or diploma as was 
required by the statute, and that the fact that before the enactment of the 
provisions of chapter 436 of 1874, which formed the basis of section 356 of the 
Penal Code, the defendant had been practicing medicine, did not affect the 
application of the statute or relieve him from the duty of taking out a license 
in order to justify his continuance in the practice.

Appeal from a judgment of the Court of General Sessions of the Peace of the 
county of New York, convicting the defendant of the crime of practicing medicine 
without a license.

A. Suydam, for the appellant.

McKenzie Semple, for the respondent.

Van Brunt, P. J.:

The indictment under which the defendant was tried contained three counts, the 
first charging the practice of medicine without the authority required by 
section 356 of the Penal Code; namely, without a license, authorizing him to 
practice, from some chartered school, State board of medical examiners, or 
medical society, and the remaining counts being based upon other statutes. Upon 
the trial, however, the district attorney, on the motion of the defendant, 
elected the first count as the count upon which he would ask for a conviction.

The evidence showed that he had been practicing medicine in the city of New York 
since 1858; that he was naturalized as a citizen in 1868; that he had received 
medical education at the universities of Halle and Jena, but that he had never 
received a full diploma, such as was given by the universities to their 
graduates upon the completion of their course of study. The evidence also showed 
that during the war he passed an examination for a commission as medical officer 
in the New York volunteers, and received a commission, after such examination, 
as assistant surgeon in one of the regiments of the New York infantry.

The learned court charged the jury that if the evidence satisfied them, beyond a 
reasonable doubt, that the defendant practiced medicine at the time and place 
and in the manner set forth in the first count in the indictment, they should 
convict the defendant, unless they were satisfied that, at that time, he had a 
license authorizing him to practice from some chartered school, State board of 
medical examiners, or medical society. To this instruction the defendant duly 
excepted. There seems to have been no error in this charge. The provisions of 
section 356 made the defendant amenable to punishment did he practice medicine 
without the license provided for by said section.

The court further charged that if the practice were proved, the burden of proof 
was thrown upon the defendant to prove that he had a license or diploma from 
some chartered school, State board of medical examiners or medical society. To 
this instruction the defendant duly excepted. This seems to have been entirely 
correct. The burden was upon the defendant to prove, after the people had proved 
the fact of the practicing of medicine, that he was authorized to practice under 
the provisions of the statute.

The court further charged that none of the papers produced by the defendant was 
a license from a chartered school, State board of medical examiners or medical 
society. The evidence certainly did not disclose any such license or diploma as 
was required by the statute. He had no license from the medical school in 
Prussia. It was merely a certificate that he had passed a limited course of 
study. The commissions which he received as medical officer in the New York 
volunteers was not a license or diploma from a State board of medical examiners 
allowing the defendant to practice medicine generally. It was an examination for 
a specific purpose, and the certificate issued was simply a limited commission 
for the practice of medicine within a limited sphere. Neither does the fact that 
before the enactment of the provisions of the law of 1874 (chap. 436), which 
formed the basis of section 356 of the Code, the defendant had been practicing 
medicine, restrict the power of the statute to compel the taking out of a 
license in order to justify his practice. This was part of the police 
regulations of the State. It was thought necessary for the protection of the 
people that these safeguards should be thrown around them in reference to those 
who assumed to practice medicine in the community. The State has a right to 
determine upon what conditions and under what circumstances its citizens should 
be entitled to pursue any vocation. It is in no way interfering with any vested 
rights, nor is it a usurpation of authority which is not possessed. There seems 
to have been no error committed in the disposition of the case, and the 
conviction must be affirmed.

Brady and Daniels, JJ., concurred.

Conviction affirmed.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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