37 Wash. 110 | Wash. | 1905
Appellant was prosecuted upon an information charging him with “the crime of practicing dentistry without a license,” in that he did “treat a disease and lesion of the human teeth, and did correct malpositions of the human teeth and jaws, of one R. A. Netzer,” in violation of the provisions of the “Dental Law” (Laws of 1901, pp. 314-318). From a judgment of conviction by the superior court he appeals to this court.
Appellant assails the constitutionality of this act; but that portion of the act involved in this case has been heretofore upheld by this court. See, State ex rel. Smith v. Board of Dental Examiners, 31 Wash. 492, 72 Pac. 110; In re Thompson, 36 Wash. 377, 78 Pac. 899.
After introducing certain evidence at the trial, the state rested its case; whereupon the appellant moved for a non-suit. Without ruling upon the motion, the court made a remark intimating that the' evidence was insufficient. Thereupon respondent’s attorney asked permission to introduce further testimony on the point under consideration. To this, appellant’s attorneys objected; but the objection was overruled, and the state proceeded to introduce further testimony. This action of the trial court is alleged as error. We are inclined to think that ordinarily this is a matter within the sound discretion of the trial court, and, in the absence of a showing of an abuse of discretion, should not be reviewed by the appellate court. In the case of Tucker v. People, 122 Ill. 583 (p. 594), 13 N. E. 809, the supreme court of Illinois said:
“The admission of further evidence; after the case had been closed and before the jury had retired,» was a matter resting in the sound discretion of the court, and as it does not appear that the discretion was abused, we do not think the court erred.”
See, Knapp v. Order of Pendo, 36 Wash. 601, 79 Pac.
Appellant further contends that there was not evidence sufficient to justify the submission of the case to the jury, or to support a verdict, of guilty. There was evidence that the appellant cleaned the teeth of Hetzer, removing tartar therefrom, and made an examination of them in order to give an estimate of the cost of “having them fixed;” that he “sounded” them and “picked” them. While part of this evidence was contradicted, it was nevertheless sufficient to carry the case to tire jury, and, if believed, to justify a verdict of guilty under the provisions of the law in question.
Appellant claims that the case was not regularly set for trial. This is a matter largely within the discretion of the trial court, and not susceptible of review here except where an abuse of discretion is shown, which is not done in this case. It is also claimed that appellant, was not given the statutory time of one day to plead. The record shows that he waived arraignment on April 11, 1904, and that the case was on the same day continued “for trial” to April 13, and tried on April 15. Ho objection to lack of time to plead or to going to trial appears to have been made until after conviction. This was too late.
Appellant further alleges that the court erred in permitting one Dr. Reynolds to testify, inasmuch as his name had not been indorsed on the information prior h> the trial. This, also-, was a matter largely within the discretion of the trial court, and, from the character of the evidence .given by said witness, we cannot see that appellant- was
Certain other errors are assigned touching the introduction of evidence, but an examination of these assignments fails to reveal any merit.
The judgment of the lower court is affirmed.
Mount, C. J., Kudkin, Crow, and Dunbar, JJ., concur.
Hadley and Fullerton, JJ., took no part.
