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State v. O'Brien

The State v. O'Brien

State v. O'Brien, 74 Mo. 549 (1881)
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Court
Supreme Court of Missouri · State Highest Courts
Decided
October 15, 1881
Judges
Hough, Other
Citations
74 Mo. 549
Disposition
Reversed.
Cited by 24
Headnotes
'Pleading, Criminal: exceptions in statutes. When an exception is contained in a statute defining an offense and constitutes a part of the offense, an indictment for such offense must negative the exception ; hut when the statute contains a proviso exempting a class therein referred to from the operation of the statute, an indictment need not negative the proviso. The accused must make the exemption a ground of defense. So Held, in reference to the proviso to section 1 of the act of 1877 in relation to the practice of medicine and surgery. Sess. Acts 1877, p. 343.
Summary
Appeal from Perry Circuit Court. — Hon. Wm. N. Nalle,. Judge. cited 1 Archb. Crim. Prae. and Plead., 86, 118 ; State v. Cox, 32 Mo. 566; State v. Taylor, 73 Mo. 52; 1 Chitty Crim. Law,, 283 b.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Hough

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Hough, J.

The defendant was indicted for practicing-medicine in violation of section 1 of the act of April 28th, 1877, which is as follows : “ It shall hereafter be unlawful-for any person to practice medicine or surgery in this State who shall not have first received the degree of doctor of' medicine from a medical college or university duly established under and by virtue of the laws of the country in which such college or university is situated; and any person who shall violate the provisions of this section shall' be guilty of a misdemeanor, and upon conviction he shall be fined in a sum not less than $100 nor more than $500 provided, however, that this section shall not apply to any person who may now be authorized to practice medicine or surgery in this State by virtue of existing laws of the State in relation thereto.” The foregoing proviso refers to section 3 of the act of March 27th, 1874, which required all persons then practicing medicine, or who should commence to practice before the 1st day of September of said year, to register their names in the office of the clerk of the county in which they resided, and thereupon authorized them to practice without having received the degree of' doctor of medicine as provided by the 1st section of that act. The indictment before us did not negative the.proviso contained in section 1 of the act of 1877, and for- *551 that reason it was held by the circuit court to be insufficient.

This ruling was erroneous. Whenever an exception is contained in the section defining an offense, and constitutes a part of the description of the offense sought to be charged, the indictment must negative the exception, otherwise no offense is charged. State v. Meek, 71 Mo. loc. cit. 357; State v. Shiflett, 20 Mo. 415 . But where, as in the case at bar, the section which defines the offense contains a proviso exempting a class therein referred to, from the operation of the statute, it is unnecessary to negative the proviso, but the exemption therein contained must be insisted on by way of defense, by the party accused. State v. Cox, 32 Mo. 566 ; State v. Shiflett, 20 Mo. 417 , and authorities there cited. The judgment will be reversed and the cause remanded.

The other judges concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 24 cases

View all citing references →
1886–1887: 11888–1889: 11890–1891: 11892–1893: 21894–1895: 11896–1897: 21898–1899: 11902–1903: 11906–1907: 11908–1909: 11910–1911: 21912–1913: 11914–1915: 21916–1917: 11924–1925: 11956–1957: 11966–1967: 21972–1973: 11974–1975: 118862026peak 1892 · 2

Relies on it most ⓘ

  1. State v. Achter514 S.W.2d 825 (Mo. Ct. App. 1974)
  2. State v. Bridges412 S.W.2d 455 (Mo. 1967)
  3. State v. Brown267 S.W. 864 (Mo. 1924)
  4. City of St. Louis v. Eskridge486 S.W.2d 648 (Mo. Ct. App. 1972) · Concurrence
  5. State v. Humfeld166 S.W. 331 (Mo. Ct. App. 1914)
  6. State v. Bockstruck38 S.W. 317 (Mo. 1896)

Most recent

  1. State v. Achter514 S.W.2d 825 (Mo. Ct. App. 1974)
  2. City of St. Louis v. Eskridge486 S.W.2d 648 (Mo. Ct. App. 1972) · Concurrence
  3. State v. Bridges412 S.W.2d 455 (Mo. 1967)
  4. State v. Holbert399 S.W.2d 142 (Mo. Ct. App. 1966)
  5. State v. Zammar305 S.W.2d 441 (Mo. 1957)
  6. State v. Brown267 S.W. 864 (Mo. 1924)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
State v. Shiflett, 20 Mo. 415 (1855) 16
State v. Cox, 32 Mo. 566 (1862) 19

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