State v. Carlisle

22 S.D. 529 | S.D. | 1908

HANEY, P. J.

Having been convicted of practicing dentistry without a license, .the defendant removed the record of such conviction to this court for review by writ tof error.

It is contended the circuit court had neither jurisdiction of the action nor of the person of the defendant. It appears that the accused applied for and was granted a change of the place of examination from the justice of the peace before whom the prosecution was instituted. After the transcript and proper papers were received by the second justice, defendant moved to dismiss on the ground that the seqond justice was without jurisdiction, which motion was .denied, and defendant was held to answer the charge preferred against him. The proceedings 'before both magistrates are conceded to have been in all respects regular, except that the transcript transmitted by the first to the second justice recited that, the cause was transferred to E. B. Skinner, “he being the next nearest justice,” without stating that the parties had not otherwise agreed. On the theory that the circuit court was without jurisdiction because the transcript from the first'justice failed affirmatively to show that the parties had not agreed upon a magistrate to whom the cause should be transferred, it is claimed the circuit court erred in refusing to set aside the information filed therein by the state’s attorney. It is provided in the Justices’ Code that, when a change of the place of examination is granted, “the cause shall be transferred to the next nearest justice of the same county, unless the parties otherwise agree.” Rev. Justices’ Code, § 124. It is undisputed that the first justice had jurisdiction of the subject-mattfer'ancl acquired jurisdiction of the person of the defendant. This being so, it must be presumed, in the absence of any showing to the contrary, that he .proceeded in, the manner prescribed by the statute. When acting within the limits of his jurisdiction, the same presumptions will be indulged in support of the judgments and orders of ¡a justice of the peace as are, indulged in to- support the judgments of courts ,of general jurisdiction. Jewett v. Sundback, 5 S. D. 111, 58 N. W. 20. It was the duty of the first justice to 'determine whether, or not the parties had agreed upon the justice to whom the cause should be transferred, and, in the absence of an agreement, to send it to the next nearest justice of the same county. It will be presumed he did his duty. Dewey v. Feiler, 11 S. D. 632, 80 N. W. 130. Therefore the circuit court did not err in refusing to set aside the information.

So far as material on this appeal, the allegations of the information are “that C. L. Carlisle * * * on the ist'day of May, A. D. 1907, at the county of * * * did * * * unlawfully and willfully practice dentistry without having a license so to do from the state board of dental examiners of the state of South Dakota, contrary to the form of the statute in -such case made and provided, and against the peace and dignity of the state of South Dakota.’' Article 10,' c. 4, Rev. Pol, Code, contains these provisions: “It shall not be lawful for any person to practice dentistry in this state without having a license so to do from the board of dental examiners.” Rev. Pol. Code, § 285. “All licenses issued by the board shall be -signed by the several members thereof and be attested by its president and secretary under the seal of the board.” Id. 289. “A person shall be deemed to be practicing dentistry within the meaning of this article, who shp.ll perform operations, or parts of operations of any kind, or treat diseases or lesions of.the human tooth or jaw or correct malpositions thereof. But nothing in this article contained shall be so construed as to apply to- acts of bona fide students of dentistry done in the pursuit of clinical advantages under the direct -supervision of a preceptor or a licensed dentist in this state during the period of their enrollment in a dental college, and attendance upon a regular course in such, college, or to preveifi any legally qualified-resident johysician and surgeon from extracting teeth, or to prevent any person from using any domestic remedy or other means for the relief of pain.” Id. 290. . “Any two members of said board, may issue a temporary ■ certificate to .any applicant upon the presentation by such applicant of the evidence of the necessary qualifications to practice dentistry, and such temporary certificate shall remain in force until the next regular' meeting oE said hoard occurring after the date of such temporary certificate, and no longer. But one temporary certificate shall ever be issued to the same applicant.” Id. 293. “Any person violating any of the provisions of this article is guilty of a misdemeanor and upon conviction thereof is punishable by a fine not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding thirty days, or by both.” Id. 294; Daws 1903, p. 137, c. 124.

Defendant insists that the information was fatally defective for the following reasons: “ (1) It fails to negative the issuance of a temporary certificate, pursuant to section 293 of the Political Code of the state of South Dakota. (2) It fails to negative the conditions under which the act alleged to have been performed might be performed pursuant to section 290 of the Political Code. (3) It fails to specify any overt act or acts of the defendant, and fails to specify any circumstances or material facts necessary to complete and constitute the offense of practicing dentistry without a license, and embraces no part of the statutory definition of the crime.” In this jurisdiction all the forms of pleading in criminal actions and rules by which the sufficiency of pleadings is to be determined are those prescribed by the Code of Criminal Procedure. Rev. Code Cr. Proc. § 219. An information ¡must contain a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. Id. 221; Words used in a statute ,to define a public offense need not be strictly pursued in the information; but other words conveying the same meaning may be used. Id. 228. The allegation that defendant practiced “without having a license -so to do” should be construed to mean that, he was acting without authority from the board of dental, examiners, either through the license provided for in-section 289 or the temporary 'certicate provided for in section' 293; and was in that - respect sufficient. Independently of the statute any .one might practice dentistry without permission of the board, notwithstanding the statute certain'persons under certain circumstances may do so; and all persons may do certain acts pertaining to the practice of dentistry as ordinarily defined. To ascertain what is forbidden — what constitutes the crime created by the Legislature, and' attempted to be charged in this action — consideration must be given to the entire enactment. -Such crime is nf>t defined by section 285. The forbidden acts are those mentioned in section 290. The forbidden omission is failure to procure the license or certificate required by other sections. It is therefore clear that the information in this case does not contain a statement ¡of the acts constituting the alleged offense, and that defendants objection to the introduction of any evidence and his motion in arrest of judgment should have been sustained. This view has the support of ¡the only analogous adjudication to which attention has been called. O’Connor v. State, 46 Neb. 157, 64 N. W. 719.

Whether in prosecutions under this statute the pleader should negative the exception relating to bona fide students need not now be determined. The question is one not free from doubt, and should be avoided in justice to that worthy class of citizens. The judgment of the circuit court is reversed with directions to dismiss the information, and take such further proceedings in the action as may be proper and consistent with this decision.