For the prosecutor, Walter D. Van Riper, Attorney-General, and Joseph A. Murphy, Assistant Attorney-General.
For the respondent, Robert J. McCurrie (Wilbur J. Bernard, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Two questions require decision in this case. 1. Did the trial judge err in adjudging respondent guilty of practicing medicine without a license? 2. Should the trial judge have entered a judgment of $500 against respondent as a second offender instead of having entered a judgment of $200 against him, as a first offender?
Prosecutor filed a duly verified complaint in writing in the First District Court of Jersey City charging, in substance, that during the months of December, 1942, and January, 1943, respondent practiced medicine (R.S. 45:9-18) in the Town of Kearny, New Jersey, without first obtaining a license
(R.S. 45:9-22, as amended by Pamph. L. 1939, ch. 115, p. 419, § 29). Additionally, the complaint charges that respondent was convicted, on May 28th, 1925, in the First District Court of Newark, for having violated section 10 of the act regulating the practice of medicine and surgery, &c., approved May 22d, 1894 (Pamph. L. 1894, ch. 306, pp. 454, 459), amended by Pamph. L. 1915, ch. 271, p. 484, § 7, and by Pamph. L. 1921, ch. 221, p. 708, § 4, approved April 8th, 1921; that the violation in the instant case is "another and continuation" of the violation for which respondent had been convicted on May 28th, 1925, and, therefore, respondent had incurred the penalty of $500 as prescribed by R.S. 45:9-26, as amended by Pamph. L. 1939, supra, § 31. We pause at this point to observe that here, as in Black v. MacMahon, 130 N.J.L. 323, 324; 32 A.2d 716, the facts constituting the violation are not set out in the complaint, and here too no point was made or is made of this, but unlike in that case respondent here demanded particulars which prosecutor supplied.
Pursuant to the statute (R.S. 45:9-22) a warrant was issued stating the provisions of the law, as alleged in the complaint, to have been violated. Respondent was apprehended. He entered a plea of not guilty, furnished a bond, and was released for hearing.
The trial judge heard the case in a summary manner without a jury. R.S. 45:9-23. He determined on the proof adduced that respondent was guilty of violating R.S. 45:9-22 and accordingly entered a judgment in favor of prosecutor and against respondent in the sum of $200, the penalty for a first offense. Respondent tendered the sum of $200 and costs to the prosecutor who, we are told and it is not denied, refused to accept the same.
Prosecutor made application for a writ of certiorari to review the amount of the judgment on the ground that it should have been in the sum of $500, the penalty for a second offense. Respondent at the same time made application for a cross-writ to review the entire proceeding on the grounds that the proofs do not support the ...