49 S.E.2d 694 | Ga. Ct. App. | 1948
1. Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous. *701
2. "On the trial of anyone charged with the violation of the provisions of Chapter 84-7, or with the illegal practice of dentistry, it shall be incumbent on the defendant, upon proof that he practiced dentistry, to show that he had authority under the law to so practice dentistry to exempt himself from the penalty for such violation." Code, § 84-9911.
3. The evidence authorized the verdict of guilty of practicing dentistry without a license.
E. M. Smith, an investigator for the State Examining Board of the Secretary of State's office testified that he had seen Dr. Jordan receive persons in his office, place them in a dental chair, and work in their mouths with dental tools and equipment; that he knew that Dr. Jordan had been doing this for some two years in his office at 130 1/2 Whitehall Street in Atlanta; and that he knew that Dr. Jordan had never been issued a license to practice dentistry in the State of Georgia. R. C. Coleman, Secretary of the Board of Examiners, affirmed the fact that Dr. Jordan did not have a license from the board to practice dentistry in Georgia.
Jonah Rolader testified: "I went to the defendant's office. . . When I arrived at his office, I went in and said I had a toothache and wanted it pulled. . . Dr. Jordan said, `I can save your tooth by filling it;' and I let him do that; and a little knot came out on my jaw and stayed there until I had it pulled. It was six or eight months until I lost my tooth after that; then I went to Dr. Lockett to have it fixed. I did not go back to the defendant's office. I sat in the chair in the defendant's office. He has two dental chairs in his office. The defendant was operating one of the chairs there when I went in, and he told me to have a seat and took a drill and started working on my tooth. . . After he finished with my tooth I went home. I paid him $2. I paid it to Dr. Jordan, the defendant on trial. . . Six months later I had to have the tooth extracted. It was filled in on top of the *702 cavity and my gum stayed abcessed until it was pulled. I had a knot on my gum. It stuck out about half an inch. The time and place where I had that work done was June 15, 1946, in Fulton County, Georgia."
The defendant in his statement to the jury said: that he held a college and a dental degree from Tulane University; that he was licensed to practice dentistry in both Louisiana and Alabama; that he had done dental work for two schools in Atlanta and Decatur; that he was fully competent to practice; that he had submitted recommendations from leading dentists in Alabama, who requested the board to issue to him a license as a matter of comity; that his lawyers had applied for an injunction [mandamus?] against the board, but that twice the members of the board had failed to appear for hearings; and he further stated: "I have approached the board on several occasions and will say with all due respect that they have been most courteous. This thing has rocked along and my credentials are in the files. I have a receipt for my money which has never been refunded. It is true a member of the board approached me at the Capitol when I went there on business one day, but he only said something about my stopping practicing and I had my receipt from them then. Well, this thing has rocked along until I could take the examination." 1. During the testimony of E. M. Smith at the trial, the witness said: "When I first went over to his office, he explained to me that he had a license in two other States and I said, `Well, the thing for you to do then is make application to the State Board of Dentistry of the State of Georgia and see whether or not they will give you a license to practice,' and he made application and went before the board and the board saw fit not to issue the license."
To this statement the defendant's attorney objected because "the statement that the board saw fit not to issue the license, as the records in the case of the board action would be in writing and would be the highest and best evidence, and we object to the admission of secondary evidence when primary evidence has not *703 been accounted for." The court ruled: "He could state whether or not he has a Georgia license;" and the witness then stated that of his own knowledge the defendant did not have a license to practice dentistry in Georgia.
"Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous." Louisville Nashville R. Co. v.McCamy,
2. Code § 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 take an impression thereof for the purpose of treating or operating upon the same or who shall by any means whatsoever make it 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." Ga. L. 1920, pp. 132, 136, § 6.
"It shall be a misdemeanor for any person to practice dentistry in this State unless said person shall have obtained a license to so practice from the Board of Dental Examiners duly authorized and appointed under the provisions of Chapter 84-7." Code, § 84-9909 (Ga. L. 1920, pp. 132, 138, 139, §§ 11, 15).
Section 24 of the act of 1920 (Ga. L. 1920, pp. 132, 142) provides: "That it shall be, on the trial of any one charged with the violation of the provisions of this act, or with the illegal practice *704 of dentistry in said State, incumbent on the defendant upon proof that he practiced dentistry in said State, to show that he had authority under the law to so practice dentistry to exempt himself from the penalty of such violation." This section is codified in the Code of 1933 as § 84-9911.
Section 26 of the act of 1920 (Ga. L. 1920, pp. 132, 142) reads as follows: "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; provided, however, that all persons now lawfully practicing dentistry in this State shall register as a practicing dentist, with the Secretary and Treasurer of said Board, and pay a fee of fifty cents therefor to said Secretary and Treasurer for said service, as provided in this act."
The State here proved that the defendant had practiced dentistry by filling a tooth for a fee on or about June 15, 1946; and that the defendant, neither at this time nor later, was licensed to so practice. The defendant contends that no evidence was introduced to show that he was not practicing dentistry prior to the passage of the act of 1920. When the State made out a case by proving that the defendant practiced dentistry in Georgia without having obtained a license from the Board of Dental Examiners, this proof cast the burden upon the defendant to prove his right to so practice. The law makes the having of a license or other authority to practice dentistry at the time of the passage of the act of 1920 a matter of defense. See, in this connection, Atlanta Southern Dental College v. State,
The defendant in his statement also relied in his defense upon the contention that he was competent to practice dentistry and should be granted a license by comity to the States in which he did hold a license; and that he had applied for a license but had never taken the examination. The Code makes the granting of licenses by comity permissive only ( § 84-710), and no question is here in issue as to the failure of the board to so issue to the defendant a license. Neither the evidence nor the defendant's statement shows that the board had granted to the defendant a license or that he had other authority to practice dentistry. The defendant did not prove and did not claim in his statement that *705 he had authority to practice dentistry prior to the passage of the act of 1920, nor did he show that he had since acquired such authority.
We think that the jury were authorized by the evidence to find the defendant guilty as charged in the accusation, and hold that the superior court did not err in overruling the petition for certiorari.
Judgment affirmed. Gardner and Townsend, JJ., concur.
