51 Ga. App. 379 | Ga. Ct. App. | 1935
Lead Opinion
The Atlanta Southern Dental College, plaintiff in error, was indicted in four counts as follows: “The grand jurors . . charge and accuse Atlanta Southern Dental College, a corporation, with the offense of a misdemeanor; for that said accused
It is insisted that the first count does not charge the doing of any act that would constitute the practice of dentistry within the meaning of the statutes of this State; that the preparing or making of an upper and lower rubber plate by a student of such college is not the practicing of dentistry except and unless it is alleged that it was done as part of the treatment of the teeth, mouth, or gums of the patient, or that the impression had been made by such student for the purpose of treatment or operating thereon; that the preparing or making of such teeth or set of teeth is a purely mechanical act which is oftentimes done by the laboratories for practicing dentists. The Code of 1933, § 84-701, provides: “All persons who shall charge a fee or salary or any other reward, whether paid or unpaid to anyone directly or indirectly, for operations or parts of operations of any kind in the treatment of diseases or lesions of the human teeth, mouth, gums or jaws, or extract teeth or attempt to correct the malposition thereof, or who shall- fill or crown a human tooth or teeth, or do any operation whatsoever on the human tooth, or- teeth, gums or jaws, or who shall make examination of any human tooth, teeth, gums or jaws, or taire an impression thereof for the purpose of treating or operating upon the same, or who shall by any means whatsoever make, if known, or imply that he will do such operations, shall be held to be practicing dentistry. Proof of any one or all of the acts mentioned in this section shall constitute prima facie evidence of the practice of dentistry.” Attention is called to the fact that prior to the act of 1920 (Code of 1933, § 84-701) the definition of dentistry as embodied in the Code of 1910, § 1746, contained the following: “or by any method suppty any substitute to take the place of a lost tooth or teeth,” and that sxxch provision is omitted from the present law. According to the rules adopted by our courts in the coixstruc
It is further insisted with reference to all the counts of the indictment that the indictment does not negative the condition provided for in the act of 1920 (G-a. L. 1920, p. 142), that “no person lawfully authorized to practice dentistry in said State at the time of the passage and adoption of this act, shall be required to obtain any license or additional authority to practice dentistry in said State.” In other words it is contended that the indictment does not allege that the persons performing the acts constituting the practice of dentistry for the corporation were not, at the time of the passage of the act, practicing dentistry. The ease of Herring v. State, 114 Ga. 96 (39 S. E. 866), is cited as authority. It was there held: “By the terms of the act approved December 15, 1897, to engage in the practice of dentistry in this State without a license was made a penal offense only as to those not engaged in such practice at the time of the passage of the act. Being an offense only as to a particular class of persons, an indictment charging one with a violation of the prohibition declared in the statute should aver that the accused was embraced in the class as to which the practice was made penal.” The act of 1897 there under consideration provided “that this act shall not affect the right under the laws of Georgia of dentists to practice dentistry, having a law
We may well make the same observations as to the third count as are made as to the first and second in the first division of this opinion. It alleges that a charge was made for the cleaning of teeth. Criminal statutes are strictly construed. Where a statute attempts to define the particular acts a violation of which would be criminal, such language will not be enlarged by implication. Cleaning teeth may require skill, but would hardly be classed as an operation. It may be an incident, or incidental to an operation, and yet not be an operation. We do not believe the language of the statute broad enough to make “cleaning teeth” the practicing of dentistry. We are confirmed in this view by the provisions of the act of 1927 (Ga. L. 1927, p. 25) with reference to dental hygenists or nurses,-which allows the removal by such nurses “of calcerous deposits, secretions and stains from normally exposed surfaces of teeth.”
Judgment reversed in part and affirmed in part.
Dissenting Opinion
dissenting. I concur in that portion of the majority opinion which holds that the court did not err in overruling the demurrer to count 4 of the indictment; but dissent from the ruling as to the other three counts. In my opinion, the court properly overruled the demurrer to counts 1, 2, and 3 of the indictment. I think the dental act was intended to bring about and insure skill and proficiency in the profession of dentistry in this State. I do not think it prohibits an unlicensed person from performing merely mechanical work upon inert matter in a dental laboratory, but the taking of impressions of the gums and the connecting of teeth in plates to fit the gums of a particular person is included in the term “practice of dentistry.” 18 C. J. 487, note (96); Jacobs v. Board of Dental Examiners, 189 Cal. 709 (209 Pac. 1006); Boykin v. Atlanta Dental College, 177 Ga. 1 (169 S. E. 361); State v. Newton, 39 Wash. 491 (81 Pac. 1002).
The indictment does not charge the mere mechanical making of plates; it charges that the plates (vulcanite rubber) were made for II. M. Butler. I think the indictment, by this allegation, meant that the plates were prepared to lit the mouth and gums of II. M. Butler. This, of necessity, includes making expert examination of the mouth and gums, carefully taking impressions, and .fitting the product to the mouth and gums of Butler. There is a difference between making dental plates generally in a dental laboratory and making them for a specially named person to fit the mouth and gums of that person. I, therefore, think that the trial judge was correct in overruling the demurrer to counts 1 and 2 of the indictment. •
“A 'dentist’ is one whose business is to clean, extract, or repair natural teeth, and to make and to insert artificial ones. 'Dentistry’ is the art or profession of a dentist. The 'practice of dentistry,’ then, is the practice-of the art or profession of a dentist.” This is
I am of the opinion that the third count alleging the cleaning of the teeth of Lillian Howe was sufficient to withstand the demurrer.