State v. Carlisle

Dec 14, 1912

Reporters:: , ,
Before:: Haney

HANEY, J.

The defendant, -having been convicted of practicing dentistry without a license, removed the record of such conviction to this court for review by an appeal from the judgment of the circuit court and its order denying the defendant’s application for a new trial.

[1] Upon being called to plead, the defendant moved the court to set aside the information, for the reason that the complaint filed with the committing magistrate was made by a person who wras not personally cognizant of any fact set forth therein, supporting such motion by the affidavit of the defendant to the effect that the person who swore to the complaint did not set forth therein any fact within his personal knowledge, or to which he could testify as a witness. This motion was properly overruled. It presented no ground for setting aside the information recognized by the statute. Rev. Code Crim. Proc. § 263 State v. Bank, 2 S. D. 538, 31 N. W. 337; State v. Bank, 3 S. D. 52, 51 N. W. 780; State v. Tough, 12 N. D. 425, 96 N. W. 1025; State v. Foster, 14 N. D. 561, 105 N. W. 938.

[2,4] A demurrer to the information, alleging numerous defects, was overruled. It will be assumed that these alleged defects are embraced by the statutory grounds (1) that the information does not substantially conform to the requirements of the Code of Criminal Procedure, (2)- that the facts stated do not constitute a public -offense, or (3) that the -information contains matter which, if true, would constitute a legal bar to the prosecution. Under the first ground it is urged that the information is defective, for the reason that the phrase “against the peace and dignity of the state of South Dakota” occurs in the body of the information and not at its conclusion. The contention is untenable. In this state •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 Crim. Proc. § 219. Such rules do not require the use of the phrase in any part of an- information or indictment. Id. §§ 221, 229. State ex rel. v. Swenson, 18 S. D. 196, 99 N. W. 114. And if such phrase was required its position in this information would be a defect or imperfection of form, which could not tend to the *490prejudice of. the .‘substantial rights of the defendant upon the merits, and therefore should not be allowed to affect the sufficiency of the pleading. Rev. Code Crim. Proc. § 230. Attention is called to section 38,i art. 5, of the state Constitution, which provides : “All process shall run in the name of the ‘State of South Dakota.’ All prosecutions shall be carried on in the name, and by authority, of the ‘State of South. Dakota.’ ” The first provision has no application to an intormation. An information is not “process,” within the meaning of such provsion. Nor has there been any violation of the second provision in this instance. I-t is not ‘essential that an information shall contain a recital, in terms, that the prosecution is by authority of the state. “It is sufficient if the record shows that the prescution is so conducteu. State v. Thompson, 4 S. D. 95, 55 N. W. 725. Moreover, the ‘state is named as party plaintiff, and the information has this recital: “Martin Bergh, stateis attorney of Minnehaha county, in the Second judicial circuit of the state of South Dakota, duly and legally elected, qualified, and acting according to law, in the name of, and by authority, of the state of South Dakota, upon his oatu, informs the court” — followed by a statement of the facts constituting the offense charged, and facts intended to show a second violation of the statute.

[5] It is contended that the information is not sufficiently direct and certain as to the circumstances ofthe offense charged, in that it does not state the names of the persons treated and the date of each treatment. The contention is not tenable. The distinction between an information which charges an offense consisting of • a single transaction and one which charges an offense consisting of a series of acts has been recognized by this court. Where one- transaction, as one sale of intoxicating liquor,, constitutes-the crime charged, it has held that the name- of the purchaser must be stated. State v. Burchard, 4 S. D. 548, 57 N. W. 491. But whenevr the crime consists of series of acts, such as engaging in the business of selling without a license, each act need not be specifically described; for it is not each, or all the acts of themselves, but the practice or habit, which constitutes the offense. State v. Williams, 11 S. D. 64, 75 N. W. 815. The case at bar is clearly within the reason of -the latter rule. “Where the *491reason is the same, the rule should be the same.” Rev. Civil Code, § 2409.

[6] There is no merit in the claim that the information fails to state a public offense, because the act upon which -the prosecution is based violates section 21, art. 3, of the state Constitution: “No law shall embrace more than one subject, which shall be expressed in its title.” The specific objection to the act is, as we understand the argument of counsel, that the penalties prescribed therein are not germane to its title. The title of chapter 4, Laws 1909, is as follows: “An act to provide for state board of dental examiners, to insure the better education of practitioners of dental surgery and to regulate the practice of • dentistry in the state of South Dakota.” The general subject, or purpose of the act, as fairly indicated by the language of the title, is the regulation of the practice of dentistry. “When .the title of a legislative act expresses a general subject or purpose which is single, all matters which are naturally and reasonably connected ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with- it, and all measures which will, or may, facilitate the accomplishment of -the purpose so stated, are germane to its title.” State v. Morgan, 2 S. D. 32, 48 N. W. 314. Clearly penalties for the violation of any prescribed’ regulations are germane to such regulations; are, indeed, necessary to accomplish the purpose for which the regulations are prescribed.

[7] The information charges that the defendant was engaged in the unlawful practice during the months of January, February, and March, 1912. It also alleges facts showing a conviction on September x, 1910, upon an information charging a violation of the law upon which the present prosecution is based, during the months of December, 1909, and January, -1910, for the purpose of having the punishment for a second offense imposed. Assuming the question to be properly raised by demurrer, the contention is not tenable that it appears, on the face of the information, that the present prosecution is barred by the former conviction,- for-the obvious reason that -the period covered by .the present -charge is alleged to have begun on a d-a-t-e subsequent to -the date of the former conviction; it affirmatively appearing that the series of acts involved in the former prosecution are not the same as those involved in the present action:

*492[8] There was no abuse of discretion in denying defendant‘s application for a continuance until the next term. He states in his affidavit: “That since the information in the above-entitled action was filed F. W. Cannon (a resident of said county and state), who is a necessary and material witness for my defense therein, having broken one of his arms, without my knowledge, consent, or procurement, has left said county and state and gone to the home of his parents in Jasper county, in the state of Missouri ,and that he has sent me through the mails the affidavit of C. M. Ketchum, M. D., which is marked ‘Exhibit A, and made a part of this affidavit, which discloses’ the present condition of the said Cannon. That said Cannon is beyond the jurisdiction of -this court, and I am unable to obtain his appearance at the .present term thereof. That since learning of the fact .that said Cannon had left this jurisdiction I have not had time to take his deposition, but have every reason to believe that I can procure his personal presence at the next term of this court and produce his evidence if a postponement or continuance of said action can be had. That the said Cannon had faithfully promised to be present and testify in my behalf upon the trial of this action, and his failure to do so is a complete surprise, and that, as hereinbefore stated, the evidence of said Cannon is material, necessary, and vital to my defense in the premises. * * * Affiant further says that said Cannon knows the facts -to be that all the treatments of a dental character between the 1st day of September, 1911, and the filing of this information against affiant with which he is charged with performing were performed under his supervision, direction, and control, as hereinbefore stated, and that said Cannon would testify upon the trial that all treatments of each and every witness whose name is indorsed on the information herein was under his direct supervision and direction, and also that all other treatments made, used, or administered to any other person by this affiant was under his direct control, supervision, and tutelage. Affiant further says that there iá,no other pedsou by whom he can establish the facts set forth in this affidavit save and except the said Cannon.” Exhibit A does not appear in the appellant’s “statement of facts.” In absence of such affidavit, this court should not presume that a broken arm was, in itself, a sufficient reason for Cannon’s absence at the time of the trial, if he desiréd *493to be present; and nothing in the record justifies the inference that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he was unfriendly to the accused. If, as appears from the defendant‘s affidavit, Cannon was able to go from Sioux Fails to Missouri, the inevitable inference is that he was able to return, in absence of any evidence to the contrary. It appearing that the information was filed in the circuit court April 29, 1912, and that the trial did not. occur until May 17, 19x2, .there was ample time within which to have secured Cannon’s deposition; it appearing that the relations ‘of the accused and the witness were friendly, and it not appearing when the witness departed for Missouri. Furthermore, it affirmatively appears that the defendant was not prejudiced by the denial of his application, as other witnesses were present who could and did offer to give the same testimony as that of the absent witness and the’ latter’s- testimony would not have been received had he been present.

[9] The statute provides that a certificate of the secretary of the board of dental examiners, stating that any person is or is not a legally licensed or registered dentist, under the seal of the board, shall be prima facie evidence in all courts of the state of the facts therein state, without further authentication. Taws 1909, c. 4, § 3. Such a certificate was1 received over the objection that the provision of the statute“, if applicable to criminal actions, conflicts with the constitutional right of one accused of crime “to. meet the witness against him face to face.” Const, art. 6, § 7. Whether there was error on this ground need not be determined, for the reason that the fact stated .in the certificate was conclusively established by other competent, uncontradicted evidence.

[10] Secion 6, Laws 1909, reads as follows: “Any person shall be said to be practicing dentistry within the meaning of this act, who shall hold himself out before the public as practicing, dentistry by equipping an office, advertising or permitting it to be done by sign, card, circular, hand-bill, newspaper or ■ otherwise, that he can or will attempt to perform dental operations ’ of any kind, treat diseases or lesions of the human jaw, or replace lost teeth by artificial ones, or attempt-to correct malposition thereof, or who shall for a fee, salary or other reward, paid or to be paid; either to himself or to another person, perform dental operations of any kind, treat diseases or lesions of the human jaw or teeth, or replace lost teeth by artificial ones, or attempt to correct malposi-*494tions thereof. The foregoing provisions of ‘this section shall not apply to students enrolled in and ■ regularly attending any dental college, who perform acts of dentistry in the pursuit of clinical advantage under tibe drec-t ‘supervision of a preceptor or a licensed dentist, during the perior of their enrollment; and the provisions of this ‘act shall not prevent any legally- licensed resident physician or surgeon from extracting teeth or to prevent any person from using any domestic remedy for relief of pain.” The evidence of ’the state -tended to prove that certain persons received treatment in the Lakot-a Block, on Phillips avenue, in Sioux Falls, during the period alleged in the information; that the place where such treatments were received consisted- of three rooms, occupied by Cannon, the absent witness, the accused, -and the latter’s wife; that one of these rooms was used for -the reception of patients, and in which Mrs. Carlisle kept the accounts, • collected fees, and ■gave receipts; and that there w-as a dental-chair in each of the other rooms, one used by Cannon, the other by the accused. Copies of the articles of incorporation and by-laws of the “Carlisle Dental College,” offered by the defendant, were excluded. The only persons named as incorporators are Cannon, the absent witness, the accused, and the latter’s wife. The by-laws, purporting to have been adopted January 8, 1912, .provide that Cannon shall be president, the. defendant vice president, and the latter’s wife ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍secretary-treasurer for one year from January 1, 1912. In the book containing the by-laws the following entries appear under the headings, “Enrollment of Students,” “Names,” “Residences,” “Dates”: “Carlisle, C. L-, Sioux Falls, S. D., Jan. 3 1912. Car-lisle, Marian E. Sioux Falls, S. D.., Jan. 3, 19x2.”’ It was shown that the persons so described as enrolled students were the accused and -his wife. No evidence was offered tending, to- prove that any other persons had ever been enrolled, that the alleged college had ever been advertised as such, or that any. person had ever received instruction as -a student‘in connection therewith. The accused testified that he had practiced dentistry in Sioux Falls for eight.years preceding January -i, 1912. His wife testified that during that time she was in charge of the clerical part of her husband’s business. All the offered, evidence, viewed in the light most favorable to the defendant, merely, tended to -prove the exitence of a corporation clothed with, power to establish a dental *495college. Clearly the existence of such a corporation is neither essential to nor evidence of the existence of a college. The fact, to be proven was the existence of a dental college.. It was wholly immaterial whether it was conducted by a corporation, partnership, or individual. Hence the documentary evidence • relating to the creation of the corporation was properly excluded. If there had been any evidence of an existing _ dental college — an institution of that character in ‘actual operation — there might have been an issue for the jury as to whether it was being conducted- in good faith, or merely as a device to evade the law. But, as the evidence wholly failed to disclose a college of. any description in actual operation, it was neither necessary nor proper to inquire into the motives which prompted the incorporators to form the corporation.

[ 11 ] Defendant was asked the following question, to which the state objected,• and the objection was .sustained: “I will ask you to state whether or not during all this time, having especial relation to the times when work was .done for ‘Connor, Delaney, Brower, and Johnson, Dr. Cannon had charge and supervision of the dental offices in question?” This testimony, and more to the same effect, was’ -properly excluded. The fact that defendant’s work was done under the direct supervision of a licensed dentist constituted no defense, in absence of evidence tending to prove that the defendant at the time wais a student enrolled in and regularly attending a dental college.

[ 12, 13] Though requested to instruct the jury that the defendant “should not be convicted for any -period during which he was enrolled as -a student in and regularly attending a- dental college, and in performing said acts of dentistry was in the pursuit of clinical advantages under the direct supervision of a preceptor or a licensed dentist during the period of such enrollment,” the court did not allude to the subject in its charge. The exception respecting enrolled students having been negatived by appropriate allegations in- the information, the question presented by the court’s refusal to instruct as requested is one of evidence, not of pleading. When, as.in the case at bar, the subject-matter of a negative averment in an indictment or information relied upon by the defendant as a justification or. excuse, lies -peculiarly within his knowledge, the general’rule .is’ that the: burden -.of -proof as to such *496justification or excuse is on the defendant. Territory v. Scott, 2 Dak. 212, 6 N. W. 435; People v. Boo Doo Hong, 122 Cal. 606, 55 Pac. 402; Cleary v. State, 56 Ark. 124, 19 S. W. 313; Williams v. People, 121 Ill. 84, 11 N. E. 881. By the “burden of proof,” as’ thus employed, is meant the duty of producing evidence in order’ to meet a prima facie case, not the quantum of evidence required to establish the truth of any given, proposition or issue. 5 Am. & Eng. Ene. 22. The presumption of innocence is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍only one of numerous rules of evidence and procedure applicable to criminal actions.

[14] “On the trial of an indictment or information for any other offense than libel, questions of law are to be decided by the court, and questions of fact are to be decided by the jury; and, although the jury have the -power to find a general verdict, which includes questions of lav/ as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.” Rev. Code Crim. Proc. § 354. While it is the province of the jury to determine whether the required facts have been established, it is for the court to determine what facts constitute the crime charged, by what evidence such facts may be established, .and what issues shall be considered. In the case at bar the fact that the accused was without a license was conclusively established. Having failed to produce any evidence tending to prove that he was an enrolled student, the burden being on him to produce some such evidence in order to raise that issue, the only material issue to be determined by the jury was the one submitted by the court, namely, whether, at the place, and -within the period alleged, he was performing the acts forbidden by the statute. It might have been better form to have stated the exception .as to enrolled students and the rule relating to the defendant’s failui‘e to produce any competent evidence tending to prove such exception, but had the suggested course been pursued‘the result would have been the same; the jury being charged, in effect, to disregard the exception In absence of any evidence produced by the state or the defendant tending in any degree to establish the exception, the learned trial court did not err in excluding that issue from the consideration of the jury.

The entire record has received thoughtful attention. Binding no reversible error; the judgment of the circuit court is affirmed.