opening, provided the prosecuting counsel acted, as here, in evident good faith.

The coincidence of an Italian having money not of his country but a Russian 100-ruble note, within four hours after this larceny of money in which this note figured, was striking. Suppose such a 100-ruble note had been picked up on the ground near which the prisoner had just passed. That corroboration, though slight, still tended to confirm Farenuck's testimony describing the money taken from him. Although it did not appear that Desapio was an accomplice, the fact of his companionship with Reitano and such possession of what may be the fruit of the crime, I think were matters relevant for the jury. Of course, the positive identification of appellant by his victim was the substantial basis for this conviction.

2. When the prisoner had called witnesses as to his alibi as working for Scuderi, and had then himself taken the stand, he was asked on cross-examination if he had referred to his employment with Scuderi, 518 Henry street, when he was arrested, and he answered "Yes." Officer Ross (who had made the arrest) was recalled and contradicted this. This issue was not collateral. It touched the decisive point of the accused's whereabouts at this time, and bore on the question of the reality of his alibi. (Hoag v. Wright, 174 N. Y. 36.) If, as was there said, expert opinion as to handwriting is dangerous, and may be thoroughly tested to prevent injustice, we can apply like tests here, where the omission when arrested to tell where he had worked that forenoon would be of importance for the jury. I advise that the judgment of conviction. be affirmed.

JENKS, P. J., RICH, BLACK MAR and JAYCox, JJ., concurred.

Judgment of conviction of the County Court of Kings county affirmed.

COURT OF APPEALS.

December 12, 1919.

THE PEOPLE v. GEORGE M. DEVINNY.*

(229 N. Y. 397.)

(1) PRACTICING MEDICINE WITHOUT BEING REGISTERED AND LICENSED AS REQUIRED BY STATUTE (PUBLIC HEALTH LAW, § 161)-WHEN INDICTMENT

ACCUSING DEFENDANT OF COMMITTING SUCH CRIME NEED NOT NEGATIVE EXCEPTION TO SUCH STATUTE.

It is the general rule that in dealing with a statutory crime exceptions must be negatived by the prosecution and provisos utilized as a matter of defense. The two classes of provisions-exceptions and provisosfrequently come closely together and the rule of differentiation ought to be so applied as to comply with the requirements of common sense and reasonable pleading.

(2) SAME.

Where an indictment accused the defendant of the crime of practicing medicine as defined by section 160 of the Public Health Law (Cons. Laws, ch. 45) without being registered and legally authorized so to do, as required by section 161 of the statute, but did not negative the cases enumerated in section 173 of the statute which enacts that the article in which both sections are found shall not be construed to affect a large number of specified persons, the indictment is not defective for that reason, since under the circumstances of this case the provision in question assumes more the nature of a proviso than of an exception. (3) SAME WHEN INDICTMENT DEFECTIVE FOR FAILING TO NAME INDIVIDUAL

TREATED.

Although there are many cases in which an indictment, which charges a statutory crime in the words of the statute, is sufficient, yet where an indictment charges a defendant with the crime of practicing medicine without a license, by diagnosing, treating or offering to diagnose or treat a disease of an individual, it is necessary that the indictment name, or excuse naming by a proper allegation, the individual treated by .defendant.

People v. Devinny, 188 App. Div. 986, reversed.

(Argued October 31, 1919; decided December 12, 1919.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department, entered

* See 37 N. Y. Crim. 262.

July 3, 1919, which affirmed a judgment of the Albany County Court rendered upon a verdict convicting the defendant of the crime of practicing medicine without a license.

The facts, so far as material, are stated in the opinion.

The indictment did not

Andrew J. Nellis for appellant. charge any acts constituting a crime. (Simmons v. United States, 96 U. S. 360; United States v. Hess, 124 U. S. 483; State v. Carey, 4 Wash. 424; O'Connor v. State, 46 Neb. 157; County of Steuben v. Wood, 24 App. Div. 442; People v. Firth, 157 App. Div. 492; State v. Thomas, 111 La. 804; Crawford v. Lozano, 48 S. W. Rep. 538; People v. Silver, 158 App. Div. 217; Wood v. People, 53 N. Y. 511.) The indictment should have negatived the exceptions. (Fleming v. People, 27 N. Y.

332; People v. Spees, 18 App. Div. 618; People v. Bradford, 178 App. Div. 371; Rowell v. Janvrin, 151 N. Y. 67; State v. Burns, 181 Iowa, 1089.)

Harold D. Alexander, District Attorney, for respondent. An allegation that defendant unlawfully practiced medicine, at a certain time and place, without a license, etc., is a complete statement of the act. (People v. Ellis, 162 App. Div. 288; People v. Firth, 157 App. Div. 492; People v. Trainor, 57 App. Div. 422; People v. Hoyt, 145 App. Div. 698; 205 N. Y. 523; People v. Williams, 149 N. Y. 1; People v. Corbalis, 178 N. Y. 516; People v. Abelson, 162 App. Div. 674, 678; 218 N. Y. 716.) The qualifying matters in the latter part of the statute should not be negatived in an indictment, as they are no part of the offense. (People v. Sullivan, 173 N. Y. 122; People v. Maine, 51 App. Div. 142; 166 N. Y. 50, 52; Rex v. Pearce, Russ. & Ryan Crown Cases, 174; State v. R. R., 50 W. Va. 235; Fleming v. People, 27 N. Y. 329; People v. Conroy, 97 N. Y. 62; Hart v. Cleis, 8 Johns. 41: Comm. v. Jennings, 121 Mass. 47: Hale v. State, 58 Ohio St.

676; State v. Abbey, 29 Vt. 60; Comm. v. Young, 21 Penn. Dist. 548.)

HISCOCK, Ch. J.:

The defendant has been convicted of practicing medicine. without a license. The questions which it is necessary for us to consider spring from the form of the indictment which by demurrer and otherwise has been challenged as insufficient.

*

*

-*

At all the times in question it was provided by the Public Health Law (Cons. Laws, ch. 45) ($ 161) that "No person shall practice medicine, unless registered and legally authorized or unless licensed by the Regents and registered" as in said section provided. By other sections the violation of this one is made a misdemeanor. Section 160, subdivision 7, of the same act provides as follows: "The practice of medicine is defined as follows: A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition." Section 173, being the one referred to in the last section, enacts that the article in which such latter section is found "shall not be construed to affect" a large number of specified persons.

The indictment accused the defendant "of the crime of practicing medicine without being registered and legally authorized (as in section 161 required) committed as follows:

"The said * * * Devinny, on May 27, 1918, and for a considerable time immediately prior thereto, at Albany, in this county, unlawfully practiced medicine, he not being then registered and legally authorized" as in the statute required and provided. Under this indictment evidence was given tending to show that the defendant held himself out as being able

to diagnose, etc., diseases, and that on three separate occasions he offered and undertook to diagnose and treat the complaint of a certain individual.

Two objections, fundamental in nature, are urged to this indictment. In the first place it is contended that the indictment, in addition to charging in the language of section 161 that Devinny unlawfully practiced medicine without being registered, etc., should have specified under the language of section 160 the specific acts performed by him constituting such unlawful practice, and secondly it is argued that the provision making it unlawful to practice medicine is affected and modified by exceptions and that, therefore, the indictment should have negatived these exceptions. These objections will be considered in the inverse order from that in which they have been stated.

The general rule is that in dealing with a statutory crime exceptions must be negatived by the prosecution and provisos utilized as a matter of defense. Attempts to apply this general rule and distinguished between exceptions and provisos have resulted in many technicalities and in much subtlety. The two classes of provisions-exceptions and provisos-frequently come closely together and the rule of differentiation ought to be so applied as to comply with the requirements of common sense and reasonable pleading. In the case at bar if it should be held that an indictment must negative all of the cases referred to in the statute as not being unlawful, it would be drawn out to intolerable lengths and even after that had been done, the burden doubtless would rest upon the defendant of proving that he came within the excepted cases. In addition, section 173, which enumerates the cases where compliance with section 160 will not be required, provides: This article (which includes section 160) shall not be construed to affect " the cases there enumerated. This language, which should be considered with that of section 160, is quite as appropriate for the statement of a proviso as of an exception.