State v. Snearly

107 P. 389 | Wyo. | 1910

Beard, Justice.

In this case the defendant was prosecuted for the crime of practicing medicine without the certificate or license required by law. He was acquitted, and the case comes to this court under the provisions of Sec. 5378 et seq., R. S. 1899, upon exceptions- taken by the prosecuting attorney, during the trial, to certain rulings and decisions of the District Court. The alleged errors of the trial court as pre-. sented by the brief of the Attorney General are, (1) the exclusion by the court of certain testimony offered by the plaintiff, and (2) in directing the jury, at the close of the-evidence, to return a verdict of not guilty..

It is contended that there was not only evidence requiring the case to be submitted to the jury, but sufficient to convict the defendant of the offense charged against him. To-determine whether or not there was error in directing a verdict, necessarily requires an examination of all the evidence-given upo.n .the trial. It is contended by the attorney appointed by the District Court to argue the case against the-prosecuting attorney, that the bill of exceptions does not purport to contain all the evidence given upon the trial and that, therefore, the question of error in directing the verdict cannot be reviewed here. The statement of the bill of exceptions is, that it “contains all the testimony taken in said case on behalf of the prosecution and defense.” Upon the' question of -the sufficiency of the statement in the bill of exceptions, the case of Wyoming Loan & Trust Co. v. W. H. Holliday Co., 3 Wyo. 386, is directly in point. In that case-the statement of the bill of exceptions was, “And this was. all the testimony offered by either party upon the trial of the .said cause.” That statement was held to be insufficient for the reason that the word '“testimony” is not synonymous with the word “evidence” and only includes one kind of evidence, and for -the further reason that the bill only purported to contain “all the testimony offered by either party,” and did not show what portion of the testimony so offered was in fact admitted and heard by the court. The court said: “The authorities are uniform in holding that the statement should be, in effect, that the bill contains all the ■évi'dence given upon the trial of the cause.” The same question was again presented in Wheaton v. Rampacker, 3 Wyo. 441, the statement in the bill being, “the said testimony was all the testimony offered by either party on the trial of this cause.” The Trust Co. case, supra, was cited, and the ■court said: “We cannot review the evidence in the record, presented, as it is claimed, before the trial court, as it has become the settled rule of this court, to which we must adhere, that the bill of exceptions must contain all the evidence admitted in the trial court, where the same is sought to be reviewed here.” That has been the rule of this court for nearly twenty years, and we see no reason for departing from it. The bill of exceptions in the present case not purporting to contain all the evidence given on the' trial, the alleged error of the trial court in directing the verdict cannot be reviewed.

The information charges, among other things, ■ that the defendant prescribed a certain form of treatment for the ailing, weak and deformed eyes of one Thomas Feast, who testified as a witness for the prosecution. A physician was called as a witness by the prosecution and after stating that he had examined the eyes of said Feast about seven months before the trial and again on the day of the trial, was asked, “In what condition did you find the eyes of this witness, as to being diseased, or otherwise ?” To this question the defendant objected, but stated no ground for the objection. The objection was, however, sustained by'the court, and counsel for the plaintiff then stated: 'We propose to show by this witness and other experts (naming them) that this, man’s (Thomas Feast’s) eyes are and have been seriously diseased; and that the fitting, placing upon his eyes of such glasses as were prescribed by the defendant were injurious to his sight, and would result in great injury to him.” To* which offer like objection was made by defendant, and was sustained, and exception -taken. We think it was proper for the plaintiff to prove that the eyes of this man were in fact diseased, he being a party for whom, it was alleged, defendant had prescribed. The court should have allowed the-question to have been answered; but there was no error in excluding the offered testimony, as the latter clause of the-offer was not relevant to the issue. (Stickney v. Hughes, 12 Wyo. 397-412.) The charge against the defendant was practicing medicine without a license, and whether the treatment, if any was prescribed, was or was not beneficial was not in issue, and, although no proper objection was made,, there was no error in excluding irrelevant or immaterial testimony.

The following question was asked the same witness:: Q. “Doctor, will you -tell me some of the conditions of eyes that require treatment?” Which question was objected to-as incompetent, irrelevant and immaterial. The objection, was sustained. We think there was no error in the ruling. The testimony sought to be elicited by the question, if material at all, should have been limited to those conditions of eyes which the evidence tended to -show the defendant had treated, or for which he had prescribed. The foregoing are-all of the alleged errors discussed in the brief of counsel for the State:

Counsel, appointed by the District Court to argue the case-here, has filed a motion to strike the bill of exceptions from-the files and to dismiss the case on the grounds that the bill is not properly signed and does not purport to contain all the evidence. The bill is signed and sealed by the judge who presided at the trial, and is certified by the clerk of the court,. with the seal of the court affixed, to be the original bill of exceptions signed and sealed by the judge and filed in the office of said clerk. That is the usual manner of signing and authenticating bills of exceptions in this jurisdiction and is sufficient. The fact that the bill does not purport to contain all the evidence is not a reason for striking it from the files or dismissing the case, if it contains exceptions that can properly be considered without all the evidence.

The motion to strike the bill of exceptions from the files and to dismiss the case is denied, and the exceptions are sustained in part and denied in part as above indicated.

Potter, C. J., and Scott, J., concur.