State v. Kaatz

92 Vt. 497 | Vt. | 1918

Miles, J.

This is a prosecution against the respondent for advertising and holding himself out to the public as a physician and surgeon without being licensed as required by law, and was by information in three counts, to which the respondent demurred. The demurrer was overruled, and to this the respondent excepted. Upon the overruling of the demurrer, the respondent moved to have the case sent to this Court before final trial. This motion was overruled, to which action of the court the respondent excepted. The ease was then tried by jury, and a verdict of guilty was found, and the. case comes here on the exceptions to the overruling of the respondent’s demurrer and motion.

The only ground ot demurrer stated in the respondent’s brief is that the information does not specifically charge the respondent with having practiced medicine without a license. No such ground is stated in the exceptions nor in the demurrer, and the prosecution is not for practicing medicine contrary to law. The respondent commences his exceptions by saying: "This is a prosecution against the respondent for advertising and holding himself out to the public as a physician and surgeon." It was, therefore, unnecessary to allege that the respondent practiced medicine without a license, and the information was not subject to demurrer for failure to so allege. The point argued is not raised by the exceptions and no other ground of demurrer being stated and relied upon in the respondent’s brief, we do not, to reverse a case, search the record for defects or errors not called to our attention by the respondent. Exceptions not briefed are waived: Rogers v. Bigelow, 90 Vt. 41, 96 Atl. 417; Parry & Jones v. Empire Granite Co., 90 Vt. 231, 97 Atl. 985; Bagley v. Cooper, 90 Vt. 576, 99 Atl. 230.

The other exception relied upon by the respondent is to the trial court’s refusal to pass the case to this Court before final trial. No authorities are cited in the respondent’s brief supporting this exception and none, we think, can be found. It was a matter wholly within the discretion of the trial court (G. L. 2262), and being within the discretion of the trial court, and it not appearing that that discretion has been abused, it is not reviewable by this Court (Lincoln v. C. V. Ry. Co., 82 Vt. 187, 72 Atl. 821, 137 Am. St. Rep. 998; Manley Bros. v. B. & M. R. R. et al., 90 Vt. 218, 97 Atl. 674) ; besides the respondent has not been harmed by the court’s refusal to send the case here before final trial, for, being a criminal ease, the demurrer was not waived by going to trial on the merits, and the respondent could be heard on his demurrer as well after as before trial in county court. State v. Bosworth, 74 Vt. 315, 52 Atl. 423; State v. Perkins, 88 Vt. 121, 92 Atl. 1.

Judgment that there is no error and that the respondent take nothing by his exceptions. Let execution be ¿tone.