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Nethken v. State

Supreme Court of Arizona

July 12, 1940

HOWARD NETHKEN, Appellant,
v.
THE STATE OF ARIZONA, Respondent

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Mr. George T. Wilson, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for Respondent.

OPINION

Page 160

[56 Ariz. 16] ROSS, C.J.

Howard Nethken was convicted of practicing medicine without a license, and he has appealed.

He was, and had been for some time before the charge was preferred against him, a licensed practitioner of naturopathy but had no license to practice medicine or surgery. On or about May 10, 1939, Mrs. Martha Hamblin Larkin, then 66 years of age, called at defendant's office on East Van Buren Street, Phoenix, and in consultation with him disclosed that she believed she had a cancer of the uterus. He examined her and as a result thereof advised her that she had no cancer of the uterus but did have a cancer on the bottom of her right foot, which should be removed or it would cause her death in a short time. Mrs. Larkin had a lump or growth on the bottom of her foot but it had never caused her any pain or in any manner inconvenienced or prevented her from using her foot. The defendant, for an agreed compensation of $25, treated the place on the foot, which he called cancerous, by the use or application of electricity in such manner as to cauterize or cut the flesh. He employed for that purpose an apparatus usually and commonly employed by surgeons in performing operations on patients. The electricity in this instance, according to defendant's own testimony, was turned on the target through a copper wire connected with a diathermy machine and from one-half to an inch from the target. The electrical heat emanating therefrom he said looked like a blue flame but that it was not a blue flame.

The patient explained that the pain from the burn was so intense that it required four persons to hold her while the operation was being performed. The burn was about an inch in diameter and about one-eighth of an inch deep. It left a sore that was later [56 Ariz. 17] treated by Dr. Louis G. Jekel, a dermatologist of Phoenix, who testified that:

"The face of this sore was filled with what is technically known as exuberant granulations, or ordinarily known as charred flesh;..."

Doctor J. H. Patterson, a physician and surgeon located in Phoenix, testified that the instrument used by defendant was

"a surgical diathermy, which is a standard equipment in all surgical operative rooms,"

and that its use for the purpose of cauterizing or cutting tissues, the removal of growth upon one's foot, or any other part of the body, constitutes a surgical operation.

Defendant contends that we have no statute that makes the practice of medicine or surgery without a license a crime and that if there is such a crime it must be a creature of statute since everyone at common law could practice medicine or the healing arts. Defendant bases this contention on the inadequacy of section 2560, Revised Code of 1928, as amended by section 2, chapter 99, Laws of 1935, to define the crime charged. The material part of such section reads:

"Any person who practices, or attempts to practice, without having a valid, recorded certificate, shall be ...


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