People v. Wendel

31 of 33 DOCUMENTS PEOPLE v. WENDEL [NO NUMBER IN ORIGINAL] COUNTY COURT OF NEW YORK, KINGS COUNTY 68 N.Y.S.2d 267; 1946 N.Y. Misc. LEXIS 3358

December 10, 1946 CASE SUMMARY:

PROCEDURAL POSTURE: Defendant was convicted of the unlawful practice of medicine in violation of N.Y. Educ. Law §§ 1250, 1251 and 1263. He filed a motion to set aside the verdict of the jury. OVERVIEW: The People claimed that the actions of defendant were in violation of N.Y. Educ. Law §1250, subd. 7, in that defendant by some means or method undertook to and did diagnose and treat and prescribe for a physical condition. Defendant maintained that he was entitled to the exemption provided by N.Y. Educ. Law § 1262, subd. 1(8) in that he was practicing the religious tenets of his church. He claimed to be a Doctor of Divinity and a minister of the Lutheran Church. His further contention was that all he did to the People's witnesses was to lay his hands on that portion of the body where the witness complained of pain, and that he asked the witness to pray in silence while he did the same and thus bring about relief. The court found that defendant had distributed literature in which he claimed to be a doctor of various specialties, but did not claim to be a Doctor of Divinity. Further, the court found that it was not necessary to lay

hands upon the naked body of a person in order to cure an ailment through prayer. The court found that defendant was not engaged in the practice of his religion, but was claiming the cloak of religion to hide his illegitimate practices. OUTCOME: The court denied defendant's motion. CORE TERMS: doctor', church, indictment, religion, divine, tenets, bail, chiropractic, healing, embezzlement, prescribe, religious, indicted, cure, practicing, profession, diagnose, pain, prayer, physical condition, physiotherapy, certificate, exemption, medicine, disrobe, relieve, healer, practice of law, good faith, deformity LexisNexis(R) Headnotes Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Free Exercise of Religion Governments > State & Territorial Governments > Police Power Healthcare Law > Business Administration & Organization > Licenses > General Overview [HN1] The religious tenets of a church must be practiced in good faith to come within the exception of N.Y. Educ. Law § 1262, subd. 1(8); that is, the tenets of a church are the beliefs, the doctrines and the creeds of the church. A person should not be allowed to assume to practice the tenets of any church as a shield to cover a business undertaking. The profession and practice of religion must be itself the cure. Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Free Exercise of Religion Governments > State & Territorial Governments > Police Power Healthcare Law > Business Administration & Organization > Licenses > General Overview [HN2] The tenets to which the law accords freedom, alike of practice and of profession, are not merely the tenets, but the religious tenets, of a church. The profession and the practice of the religion must be itself the

cure. The sufferer's mind must be brought into submission to the infinite mind, and in this must be the healing. The operation of the power of spirit must be, not indirect and remote, but direct and immediate. If that were not so, a body of men who claimed divine inspiration might prescribe drugs and perform surgical operations under cover of the law. While a healer inculcates the faith of the church as a method of healing, he is immune. When he goes beyond that, puts his spiritual agencies aside, and takes up the agencies of the flesh, his immunity ceases. He is then competing with physicians on their own ground, using the same instrumentalities, and arrogating to himself the right to pursue the same methods, without the same training. The law exacts no license for ministration by prayer or by the power of religion. But one who heals by other agencies must have the training of the expert. COUNSEL: [**1] Nathaniel L. Goldstein, Atty. Gen. of State of New York, and John J. Calanese, Asst. Atty. Gen., for the People. Harry Gilgulin, of New York City, and John R. Starkey, of Brooklyn, for defendant. OPINION BY: GOLDSTEIN OPINION [*267] GOLDSTEIN, Judge. This is a motion made by the defendant to set aside the verdict of the Jury, finding him guilty of the first count of this indictment. This defendant was charged with the unlawful practice of medicine in violation of Sections 1250, 1251 and 1263 of the Education Law of the State of New York, and that he held himself out as being able to diagnose, treat, operate or prescribe for a human disease, pain, injury, deformity or physical condition of certain persons named in the indictment, and that he offered to and undertook to treat aforesaid persons for various human diseases, pains, injuries, deformities or physical conditions. Briefly, the People's case consisted of testimony offered by two Special

Investigators who testified to several visits made by them to the defendant's offices, at which time they were asked to disrobe and don a white gown which opened in the back; that the defendant made an [*268] examination of their persons [**2] and made certain diagnoses, namely, curvature of the spine, causing a pressure of the nerve in the sacro-iliac; kyphosis of the back; constipated condition due to certain foods, and prescribed a diet to relieve this condition; prescribing yarrow and horehound to relieve a cold and slippery elm tablets to relieve a cold and sore throat. In addition, People's witnesses testified that defendant pressed and prodded with his hands along the back and spine of the witnesses, and various other portions of the body; that he used a heating lamp, violet-ray lamp and electric vibrator. The third witness called by the People was Bertha Huber, who was employed in the Board of Transportation, and who testified to making two visits to defendant's premises, at which time he examined her 'like a doctor' and that he placed his hands on her stomach, back and other parts of the body and gave her a massage. All of these acts the People claim are in violation of Section 1250, Subdivision 7 of the Education Law, in that the defendant by some means or method undertook to and did diagnose and treat and prescribe for a physical condition. Defendant maintains that he is entitled to the exemption provided [**3] by Section 1262, Subdivision 1(8) of the Education Law in that he was practicing the religious tenets of his church. He claims to be a Doctor of Divinity by reason of a certificate issued by Union College in Illinois in 1944 and a certificate of Doctor of the Divine Metaphysics received from the Church of Divine Metaphysics in 1944. Defendant further contends that he is a Minister of the Lutheran Church, having been duly ordained as such by the American Council of Churches in Chicago. His further contention was that all he did to the People's witnesses was to lay his hands on that portion of the body where the witness complained of pain, and that he asked the witness to pray in silence while he did the same and thus bring about relief.

The defendant further admitted that he was a graduate of the Philadelphia College of Pharmacy in 1908 and that he took a four-year course from 1914 to 1918 in the New Jersey College of Osteopathy, a Post-Graduate Course at the American School of Chiropractic, a two-year course in physiotherapy at the Metropolitan School of Physiotherapy and a PostGraduate Course in said subject at said school. In an affidavit submitted in connection with a motion [**4] to transfer this case from the Court of Special Sessions to the County Court, defendant further admitted that for one year he attended Jefferson Medical College and that he was licensed by the State of Vermont as a chiropractic physician. My investigation further discloses the fact that for some years the defendant was associated with one Benedict Lust who in 1933 was convicted of violation of Section 66 of the Education Law in that he fraudulently dispensed diplomas in violation of the law. In connection with [*269] his association with Lust, this defendant gave certain lectures, speaking on the following subjects: Herbs and Constipation; Ulcers of the Stomach; Arthritis and Muscular Pains; Hardening of the Arteries; Intestines and Gall Bladder. Then he wrote articles for a magazine known as 'Nature's Path' which is published by the said Lust; one of those articles appeared in the September, 1944 issue, entitled 'Magnetopathy and Magnetized Water' and which article concluded with the following statement: 'Magnetic Healing is the Answer of the Day.' In a letter written by the defendant to the witness Huber, defendant signed his name with the following initials: D.C., which [**5] means Doctor of Chiropractic D.O., which means Doctor of Osteopathy D.P., relating to his Doctor of Pharmacy Degree received in 1908. On other literature printed by this defendant, there appeared the following: Spinal Analysis; Spinal Adjustments; Chiropractic Health Building System; the name Dr. Paul Wendel; Science of Chiropractic, Licensed Chiropractic Physician in the State of Vermont, and in the lower left-hand corner of the same card lists the following degrees: Doctor of Chiropractic

Doctor of Osteopathy Doctor in Pharmacy Doctor of Science In none of the literature that he gave in connection with his association with Lust did the defendant ever state that he was a Doctor of Divinity or a Doctor of Divine Metaphysics, or that he was a divine healer; in none of the printed literature under his name does this defendant make any claim to being a divine healer or a Doctor of Metaphysics. I strongly question the validity of the so-called certificates of Doctor of Divinity that this defendant claims to have received from Union College in 1944 and from the Church of Divine Metaphysics, because on cross-examination this defendant admitted that at no time did he ever undertake [**6] any course in any seminary or any theological studies. Of course, in the practice of any religion it may not be important to determine whether or not a person claiming to be a priest or a minister had any education in theological studies. Under our form of government and under our Constitution, all of the people of this country are entitled to worship their God in their own manner. But one claiming the exemption provided by law may prove that claim. The issue in such a claim is one of legitimacy. Is the defendant practicing a religion in good faith? Does he have a congregation or church? Does he administer only prayer and refrain from the use of physical means? Does he prescribe medicine or diets? Does he undertake examinations and give physical treatments? These are some of the [*270] issues which determine whether or not he is exempt from the operation of the statute. In the case of People v. Cole, 219 N.Y. 98, 113 N.E. 790, L.R.A.1917C, 816, it was held that [HN1] the religious tenets of a church must be practiced in good faith to come within the exception; that is, the tenets of a church are the beliefs, the doctrines and the creeds of the church. A person should not [**7] be allowed to assume to practice the tenets of any church as a shield to cover a business undertaking. The profession and practice of

religion must be itself the cure. The latest case to come to the Court of Appeals on this point is that of People v. Vogelgesang, 221 N.Y. 290, 116 N.E. 977, 978. There Judge Cardozo wrote the prevailing opinion, of which the following is a part: 'The law, in its protection of believers, has other cures in mind. [HN2] The tenets to which it accords freedom, alike of practice and of profession, are not merely the tenets, but the religious tenets, of a church. The profession and the practice of the religion must be itself the cure. The sufferer's mind must be brought into submission to the infinite mind, and in this must be the healing. The operation of the power of spirit must be, not indirect and remote, but direct and immediate. If that were not so, a body of men who claimed divine inspiration might prescribe drugs and perform surgical operations under cover of the law. While the healer inculcates the faith of the church as a method of healing, he is immune. When he goes beyond that, puts his spiritual agencies aside, and takes up the agencies of [**8] the flesh, his immunity ceases. He is then competing with physicians on their own ground, using the same instrumentalities, and arrogating to himself the right to pursue the same methods, without the same training. 'The law exacts no license for ministration by prayer or by the power of religion. But one who heals by other agencies must have the training of the expert.' The People maintain that what this defendant did in treating the People's witnesses was to give both a chiropractic adjustment and the use of modalities in physiotherapy treatment. The jury passed on the question of fact as to whether or not the People's witnesses were to be believed or whether or not the defendant's version of what took place was to be believed. They had before them not only the testimony of the witnesses called by both sides, but countless exhibits, and by their verdict of guilty they resolved that the defendant did violate Section 1251 of the Education Law in practicing medicine without a license. The Court recognizes all forms of religion, as well as the religious tenets of any church and that there may be those who have the divine power of

healing and that as long as those who claim to have [**9] that power conduct themselves within the meaning of the decision of Judge Cardozo [*271] in the Vogelgesang case, namely, 'The profession and the practice of the religion must be itself the cure. The sufferer's mind must be brought into submission to the infinite mind, and in this must be the healing' -- that they would then be entitled to the exemption provided by the Education Law. This prosecution against this defendant is not a prosecution against religion, but rather a prosecution against a faker and quack who claims the cloak of religion to hide his illegitimate practices. The authorities must at all times be aware of such individuals and to root them out from the real and legitimate practice of religion. The authorities must at all times be ready not only to protect the public, but the Church itself and the different forms of religion that are practiced in this country of ours. Further investigation by the Attorney General and State Education Department as to the activity of this defendant reveals the following: That he was admitted to practice law in the State of New Jersey about 1918; that in 1920 he was indicted on a charge of perjury; that after trial defendant [**10] was found guilty and sentenced to serve nine months; that on appeal this conviction was affirmed. 96 N.J.L. 495, 115 A. 390. Thereafter, and in 1922, the defendant was disbarred from practice as an attorney. That some time in 1924, the defendant secured a pardon from the Governor of the State of New Jersey and was re-admitted to the practice of law. 128 A. 249, 3 N.J.Misc. 312. That some time in 1930, this defendant resigned from the practice of law in the State of New Jersey; that at the time of this resignation complaint had been lodged against the defendant with the Ethics Committee of the Bar Association by one Peter Hawes, of Tom's River, New Jersey, who claimed that the defendant had received a check for $ 2,100 in settlement of an action with the Indemnity Company of North America; that the check was received by the defendant on April 28, 1930 and made payable both to Wendel as attorney and to Peter Hawes, individually and as

husband of Edith Hawes; that the defendant attempted to cash said check by signing both his own and Peter Hawes' names in endorsement; that the check was cashed by the defendant about April 30, 1930; that on June 14, 1930, the defendant gave a check [**11] for $ 1,154.17, payable to Edith Hawes and Peter Hawes and payment of this check was stopped; that on June 17, 1930, the defendant sent to Peter Hawes the sum of $ 500; that the Ethics Committee of the Bar Association sent the defendant a notice to appear before it on June 27, 1930; that a short time before the time of hearing the defendant paid an additional sum of $ 41.67 in cash and the check of a third party to cover the balance due his client. Our investigation with the Ethics Committee reveals the fact that this defendant admitted in their presence on June 27 that he had forged the endorsement of Peter Hawes on the check. The defendant failed to [*272] appear at the second meeting of the Ethics Committee on July 17, at which time his letter of resignation was submitted. The further results of our investigation reveal the following: January, 1931, Indictment No. 75. Defendant was indicted on a charge of uttering. Released in bail of $ 200; Mercer County, N. J., Indictment No. ___. Indicted on March 31, 1936, on a charge of embezzlement -- Bail $ 500. Mercer County, N. J., Indictment No. 3. January 1931 indicted on a charge of embezzlement -- Bail $ 500. Mercer [**12] County, N. J., Indictment No. 74. Indicted in January, 1931. Charge of embezzlement -- Bail $ 1,000. Trenton, N. J., Indictment No. 2. January 1931 False Pretenses -- Bail $ 1,000. Mercer County, N. J., Indictment No. 248. October 1930. Charge of embezzlement -- Bail $ 2,000. Mercer County, N. J., Indictment No. 249. October 1930. Charge of embezzlement -- Bail $ 500. Trenton, N. J., Indictment No. 250. October 1930. Charge of embezzlement -- Bail $ 500.

Trenton, N. J. Indictment No. 251. January 1931. False pretenses -- Bail $ 500. Defendant has used several aliases during his lifetime, among them the names of Mr. Albert and Chris Knorr. It must not be forgotten that this defendant had the three witnesses for the People disrobe and that he placed his hands upon their naked body. Surely, by no stretch of the imagination can it be urged that in order to cure a person of any ailment by means of prayer that it becomes necessary for the person to disrobe. The Court recalls that the witness Huber was requested to remove her corset, because, as the defendant put it, his magnetic power could not penetrate through the corsets. This is only one instance of revealing [**13] the sham and falsity of the defendant's claim to practicing the religious tenets of his church in bringing about divine healing by means of prayer. The State Education Department through its Executive Secretary, C. Everts Mangan, to whom credit should be given for investigating and collecting the evidence in this prosecution against this defendant, feels very strongly about this case. It is Mr. Mangan's belief that this defendant is one of a group who prey upon a gullible public, lulling them into a false sense of security, into having the public believe that they were doctors efficiently able to treat, diagnose and prescribe for human ills. The motion is denied.