On certiorari. Prosecutor seeks to set aside a judgment of the Second District Court of Newark, adjudging respondent not guilty of violating section 10 of our act concerning the practice of medicine and surgery, &c. Affirmed.
For the prosecutor, David T. Wilentz, attorney-general.
For the respondent, Frank B. Bozza.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Respondent, defendant below, was charged by the prosecutor, plaintiff below, with having violated section 10 of an act of the legislature of our state, entitled "An act to regulate the practice of medicine and surgery, to license physicians and surgeons and to punish persons violating the provisions thereof,' approved May 22d, 1894, amended April 8th, 1921, in that she (defendant) did commence and continue to practice medicine and surgery during the months of August, September and October, 1929, within the meaning of section 8 of the said act as amended by Pamph. L. 1915, ch. 271, approved April 12th, 1915, without having first had and obtained a license for so doing, as provided by section 10 of the act aforesaid.
The complaint was filed November 7th, 1929. It was returnable November 18th, 1929. After several adjournments the case was heard, in the absence of defendant, on June 23d, 1930. Defendant was found guilty and a judgment of $200 was rendered in favor of plaintiff. On a rule to show cause the judgment was vacated. Subsequently the case was retried and at the end of plaintiff's case, on a motion for nonsuit, the court found the defendant not guilty. The plaintiff, on certiorari, brought up that judgment to this court for review. 9 N.J. Mis. R. 1148. review. 9 N.J. Mis. R. 1148.
This court reversed the judgment of not guilty. It said:
"The defendant was convicted at the first trial and was then granted a new trial by the trial judge apparently upon
the ground that the trial was heard in the absence of the defendant. At the new trial the judge gave judgment in favor of the defendant and against the plaintiff.
"We think that was erroneous. There was ample and undisputed testimony upon the part of the state board to the effect that the defendant was not licensed; that her place was furnished like a hospital, with instruments, compartments and beds; that she treated various witnesses for various complaints by the use upon the bodies of the witnesses of electrical appliances after having diagnosed their condition as various diseases. In one case she treated a woman for anemia after taking her blood pressure with an instrument; in another she treated a woman for rheumatism and strained muscles. The defendant did not take the witness-stand and produced no witnesses in contradiction of the testimony upon the part of the state board that she used three or four different kinds of electrical instruments in the treatment of witnesses. Such evidence uncontradicted not only justified but required a finding of violation of the provision of the statute of which complaint was made. The proceeding was civil and not criminal in character. The rules of procedure peculiar to civil jurisdiction were applicable. State Board v. Roche, 102 N.J.L. 262; Lowrie v. State Board, 90 Id. 54; State Board v. Johnson, 141 A. 591.'
On the retrial of the instant case the plaintiff, by stipulation, offered the transcript of the proofs in the former case. In addition thereto, a Mrs. Delia Orr testified to treatments by respondent and her ...