Burrow v. Hot Springs
108 S.W. 823
Ark.
1908
Check Treatment
Wood, J.

(after stating the facts.) This court, in Thompson v. Van Lear, 77 Ark. 506, passed upon what is known as the “Gantt Daw”, § § 5246-5250, Kirby’s Digest, and sustained the act as a proper exercise of the police power of the State in regulating the practice of medicine and surgery. That law makes it a misdemeanor for a physician to procure patients through what is designated “solicitors, cappers, or drummers” employed by him for the purpose, and the penalty prescribed by the act was intended to prohibit the drumming by doctors in the manner set forth in the act. The ordinance under consideration was in conformity with the “Gantt” law, and the city council had authority, under sections 5460 to 5464, Kirby’s Digest, to pass it. Under these provisions the city council has power to make and publish such by laws and ordinances, “not inconsistent with the laws of the State”, as it deems necessary to provide for the safety, and to preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporation and the inhabitants thereof. The city council has power, in other words, to pass ordinances, not inconsistent with the laws of the State, for carrying into effect the provisions of the general municipal law. The council is authorized and impowered to “prohibit and punish any act, matter or thing which the laws of this State make a misdemeanor,” and to prescribe penalties for all offenses committed in violating the ordinance, not exceeding the penalties prescribed for similar offenses against the State laws. The council is prohibited from' prescribing penalties for violating city ordinances that are not prescribed for “similar offenses against the statutes of the State.” So much of section 5438 of Kirby’s Digest as relates to the regulation of “drumming for doctors” must be construed to refer to its regulation in some other way than that designated under the Gantt law. For drumming in the manner designated by the latter act is absolutely prohibited; and the later statute expressly repeals all laws in conflict with it.

Under 'the decision of this court in Thompson v. Van Tear, supra, and the sections of the Digest (5460 to 5464), the ordinance is valid. We need not pass upon the question as to whether or not that portion of the ordinance is valid prescribing as a part of the penalty a denial of the right to practice medicine pending the appeal. If appellant pursued the practice of his profession in the city of Hot Springs or elsewhere in the State, pending his appeal, without violating the provisions of the law with reference to “doctor drumming”, and he should be convicted for so doing, then, on appeal from such conviction, the question as to the revocation of his license to practice pending the appeal could be properly raised. At present the appellant stands convicted of drumming for patients by hired agents. That is the only question we need consider. As to that it is quite certain that the statute (Gantt law) and the ordinance in question are prohibitive.

Second. The procedure prescribed for the prosecution of misdemeanors or offenses against the ordinances of a city in tbe police court is similar to the procedure provided for the prosecution of misdemeanors in justice’s courts. No written information is required, no indictment is necessary, in prosecutions for violation of the ordinances of the city. Secs. 2482-83, also 2495, Kirby’s Dig. Proceedings before a police judge, like proceedings before a justice of tbe peace, “are not very narrowly scrutinized in matters of form.” Richardson v. State, 47 Ark. 565. The affidavit has performed its office when the accused is brought before the police judge for trial. A mere defective statement in it does not affect the subsequent proceedings unless it is so uncertain as not to charge an offense. Kinkead v. State, 45 Ark. 536; Elmore v. State, 45 Ark. 243; Watson v. State, 29 Ark. 299; Railway Company v. Lindsay, 55 Ark. 281. But the appellant, to be sure, was entitled to a proper statement of the charge against him, and the affidavit under consideration was sufficient for that purpose. It was couched substantially in the language of the statute and ordinance, as to the charging part, and that was sufficiently definite to bring appellant before t'he police judge to be tried for that offense. The appellant was guilty if he had procured patients by means of hired agents, and as to who these agents were was matter of proof. Section 5629, Kirby’s Digest.

Third. Counsel for appellant urge here that the testimony of certain witnesses taken before the police court and reduced to writing was hearsay and irrelevant, and should not have been admitted. But this was not made a ground for the exclusion of such evidence in the motion for new trial. The reason assigned for the exclusion of this evidence in the motion for new trial is: “Because the city failed to show that said witnesses at the time of the trial were beyond the jurisdiction of the court, and because no other legal foundation was laid for the introduction of said evidence.” That is the only reason we can consider here. Not having urged the objection of hearsay and irrelevancy in their motion for new trial, these objections must be considered as having been waived. The trial court must first have an opportunity to pass upon the objections. Deitz v. Lensinger, 77 Ark. 274; Miller v. Nuckolls, 77 Ark. 64; Ince v. State, 77 Ark. 418; McClintock v. Frohlich, 75 Ark. 111; Burris v. State, 73 Ark. 453.

Fourth. A proper foundation for the introduction of the evidence of the witness Osman Washington, taken at former trial before the police court, was laid on the trial of this case in the circuit court. That was sufficient. The correctness of the ruling of the trial court can not be tested or affected by the fact, discovered since the trial, that witness Washington was not beyond the jurisdiction of the court. It was so made to appear when the testimony of the witness was. offered.

Appellant does not contend in his brief here that it was not made to appear to the trial court that Washington and the other witnesses named were beyond the jurisdiction of the court at the time their testimony was offered. Whether true or not, if the court so found upon a sufficient showing, the testimony of the witnesses alleged to be beyond the jurisdiction of the court was properly admitted.

Fifth. The court did not err in refusing to give appellant’s requests for instructions numbered six and eleven. The appellant received the benefit of the propositions of - law embodied in these requests- in instructions numbered one and two, which the court had already given at his request. The court properly refused requests for redundant instructions.

The court did not err in giving instruction numbered eight at the request of appellee. There was evidence tending to prove, and to warrant the jury in finding, "that various parties were aiding, abetting, and assisting appellant in the practice of procuring patients by means of hired agents. ' These parties were witnesses. It was not improper therefore for the jury to have in mind, in passing upon the credibility of these witnesses, the proposition of law announced in the instruction. But, if the instruction were abstract, it was not .prejudicial. In misdemeanors there are no accessories. All who participate in any way in an unlawful act are principal offenders. Miller v. State, 55 Ark. 188; Foster v. State, 45 Ark. 361; Crocker v. State, 49 Ark. 60; Fortenberry v. State, 47 Ark. 188. The instruction could have had reference only to the persons, witnesses, who were shown by the facts detailed to have'aided appellant in the violation of the law, if he did violate same, as the jury found. The instruction therefore was only tantamount to saying to the jury that they might consider the interest, or bias, or prejudice, that any witness might have in the case, in determining the credibility of such witness. We do not think the instruction prejudicial.

The court did not err in giving instruction number six asked by appellee. While this instruction was not in apt language, and could not be approved as a precedent, yet, when taken in connection with instructions numbered two, four and seven, given at the request of appellant, it could not possibly have misled the jury. It was not an instruction on the preponderance of the evidence, as held in Gill v. State, 59 Ark. 98. The effect of the instruction, in the opinion of two of the judges, when taken in connection with the instructions mentioned, was to tell the jury that, before the guilt of the defendant could be established by circumstantial evidence, the facts and circumstances tending to prove guilt would have to be such as would warrant the jury in inferring, or coming to the conclusion from these facts and circumstances, that the appellant was guilty beyond a reasonable doubt.

Two of the judges, however, are of the opinion that the instruction is misleading and calculated to confuse the jury, and is therefore prejudicial.

Sixth. We have carefully considered the assignment that the evidence is not sufficient to support the verdict. This, in our opinion, is the most serious question in the case. But we are unable to say, when the evidence is all considered, that there was no evidence to sustain the verdict. We are of the opinion that there was sufficient evidence to go to the jury as to the guilt of the defendant, and that the verdict is conclusive of that question here.

As the judges do not differ upon any other question in the case except as to the correctness of instruction number six, asked by appellee, the judgment must stand affirmed upon an equal division of the judges. And all the judges concur in the affirmance of the judgment for the reason above stated.