determination that said surety has sufficient property to respond to the obligation in case there is a breach. Therefore, what the surety produces by way of evidence, whether in his original. affidavit or upon further justification upon question and answer to establish his sufficiency, is material to that issue. If the original affidavit sufficiently discloses the possession of property to satisfy the magistrate that the bail is good, there is no need for question and answer. In the case at bar the magistrate did first question the proposed surety, and then the result of said inquiry was put in the form of an affidavit sworn to by the appellant.

If the statements as to the ownership of the specified property by Davis were not material, then there can never be any warrant for examination as to specific property. The bare statement that the surety is worth a certain sum would close the inquiry, and the provisions for justification are idle. Such holding would open wide a door for straw bail. "If the matter falsely sworn to is circumstantially material or tends to support and give credit to the witness in respect to the main fact, it is perjury." (Wood v. People, 59 N. Y. 123.) Here the main fact was the sufficiency of the surety. The matter falsely sworn to tended to support and give credit in respect to that main fact and so was perjury.

We have examined the record and have found no errors committed to the prejudice of the defendant and conclude that the evidence sustains the verdict.

Therefore, the judgment should be affirmed.

PATTERSON, P. J., INGRAHAM, LAUGHLIN and Scoтт, JJ., concurred.

Judgment affirmed.

SUPREME COURT-APP. DIVISION-FIRST DEPARTMENT,

Dec., 1907.

THE PEOPLE v. EUGENE CHRISTIAN.

(122 App. Div. 122.)

UNAUTHORIZED PRACTICE OF MEDICINE.

The court will not apply any hard and fast rule in determining what acts constitute practice of medicine without authorization and registration contrary to the statute.

APPEAL by the defendant, Eugene Christian, from a judgment of the Court of Special Sessions of the first division of the city of New York, rendered on the 4th day of April, 1907, convicting the defendant of the crime of unlawfully practicing medicine.*

Samuel M. Gardenhire, of counsel [Gardenhire & Jetmore], for the appellant.

Robert S. Johnstone, of counsel [William Travers Jerome, District Attorney], for the respondent.

PER CURIAM:

The information accused the defendant of the crime of practicing medicine without lawful authorization and registration. We have carefully examined the record in this case and have reached the conclusion that upon the facts presented the defendant had not committed the crime charged.

In People v. Allcutt (117 App. Div. 546; affd., 189 N. Y.

* See Public Health Law (Laws of 1893, chap. 661), § 153, as amd. by Laws of 1895, chap. 398, and Laws of 1905, chap. 455. See also Laws of 1907, chap. 344, §§ 15, 16. This case arose under the Public Health

Law. [REP.

517), this court said: "It may be difficult by a precise definition to draw the line between where nursing ends and the practice of medicine begins, and the court should not attempt, in construing this statute to lay down in any case a hard and fast rule upon the subject, as the courts have never undertaken to mark the limits of the police power of the State or to have precisely defined what constitutes fraud. What the courts have done is to say that given legislation was or was not within the limits of the police power, or that certain actions were or were not fraudulent." We thereupon proceeded to review all of the facts in that case and drew the conclusion therefrom that Allcutt came within the purview of the statute prohibiting the practice of medicine without being lawfully authorized and registered, and sustained the conviction.

In the case at bar the learned district attorney has collated certain of the facts which were similar to those presented in the Allcut case, and upon them urges that the judgment should be affirmed. But there were other facts of great importance to the conclusion reached in the Allcut case not present here. It would serve no useful purpose to set forth the evidence because, as we have said, the court declines to lay down a hard and fast rule in such cases.

As upon the whole case we find that no crime was committed and that the defendant was improperly convicted, the judgment appeal from should be reversed.

Present-PATTERSON, P. J., INGRAHAM, MCLAUGHLIN, CLARKE and HOUGHTON, JJ.

Judgment reversed. Settle order on notice.

INDEX

ABDUCTION.

ABDUCTION OF FEMALE-EVIDENCE OF INTENT.

As intent is an essential element to crime it is competent
to show conduct on the part of the defendant tending to
establish motive, which may be done by evidence of con-
duct previous to the time alleged in the indictment, tending
to show that he had intention to make use of the complain-
ant for purposes prohibited by the statute. People v.
Spriggs, 180.

ABORTION.

1. EVIDENCE-DYING DECLARATIONS.

Dying declarations are only admissible against the de-
fendant in a criminal action when the person making them
was under the belief of impending death and had aban-
doned hope of recovery. Before such declarations become
admissible both conditions of mind must be established.
People v. Brecht, 391.

2. SAME.

An abandonment of hope of recovery by the victim of a
criminal abortion is not established when, not being ap-
prised of her dangerous condition or that she was about to
be operated upon, she stated in answer to a question by
the coroner that although she believed she was about to

die, she hoped that God would let her recover, and her
dying declarations are not admissible. Id.

3. SAME-CODE CIV. PROC. § 834.

The privilege of physicians under § 834 of the Code of
Civil Procedure does not apply to criminal prosecutions for
causing death of the patient, and a physician may state
what he learned as to the physical condition of the patient
by examination. Id.

4. SAME-LAWS 1905 CH. 331.

Chapter 331 of the Laws of 1905, amending said section
by providing that the privilege shall not apply where the
patient is a child under sixteen years of age and the infor-
mation acquired indicates that the patient is a victim of a
crime, must be construed to apply only to a living patient
under sixteen years of age upon whom a crime is com-
mitted, and has no application to a person whose death is
the subject of a criminal prosecution. Id.

See PUBLIC NUISANCE.

ADJOURNMENT.

Criminal trials cannot be indefinitely adjourned be-
cause defendant asserts he has a material witness who can-
not be produced. People v. Browne, 91.

The granting of an adjournment of a trial in a criminal
action is in the sound discretion of the judge. People v.
Curtis, 134.

See FORGERY, 4.

APPEAL.

1. ORDER ALLOWING COUNSEL FEES FOR DEFENSE OF CRIM-
INAL-PARTIES.

A county treasurer is not entitled to notice of an appli-