State v. Ramsey

154 N.W. 731, 31 N.D. 626, 1915 N.D. LEXIS 218

Opinion

Pisk, Ch. J.

Appellant was convicted in the county court of Cass county of the crime of wilfully and unlawfully practising veterinary dentistry without first procuring a permit or certificate authorizing him so to do, and he has appealed to this court from the judgment of conviction, alleging numerous assignments of error, which will be considered in the order presented.

The first assignment challenges the correctness of the ruling denying appellant’s preliminary motion to quash the warrant of arrest. This motion was predicated upon the fact, which was developed through an examination of the complaining witness, that such witness -at the time of making his complaint, which is sworn to positively, had no personal knowledge of the facts. It is argued that § 18 of our state Constitution was thus violated. This section reads: “. . . No warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” We are so clear that appellant is in error in urging the above contention that we deem an extended discussion of the point unnecessary. We deem the cases of State v. McKnight, 7 N. D. 444, 75 N. W. 790; and State v. Longstreth, 19 N. D. 268, 121 N. W. 1114, Ann. Cas. 1913D, 1317, in point and controlling, and we adopt and reaffirm the reasoning and conclusions in those cases. See also Potter v. Barry, 156 Mich. 183, 120 N. W. 586. If appellant’s contention were sound, many criminals would be immune from arrest and prosecution merely because of the fact that there are no persons having personal or positive knowledge connecting the accused with the commission of the crime, although there might be many persons possessing information of a nature sufficient to satisfy their minds to a moral certainty of the guilt of the accused. It is clear that the framers of the Constitution in adopting § 18 never intended that the “oath or affirmation” therein mentioned should in all cases be based upon nothing but actual personal knowledge of the person making the same. To impute to them such an intent is, we believe, wholly unwarranted.

Appellant’s next contention is that no information was filed as the basis for the issuing of the warrant of arrest, the particular point being that under § 8962, Comp. Laws of 1913, prosecutions in the county court can be instituted only by the filing of an “information,” and that the word “information” as there used must receive the meaning given it in §§ 10525-10521, inclusive,' and § 10681, Comp. Laws of 1913, which sections define a complaint, indictment, and information, respectively. We are convinced that such contention is without merit. We think this very clearly appears from a consideration generally of the statutes governing the practice in county courts of increased jurisdiction. The language employed in § 8962 should be construed with reference to the preceding section, which prescribes that in criminal actions triable in the county court the justice of the peace or other committing magistrate before whom the accused person is brought must “admit to bail, bind over or commit for trial, the accused to the county court of such county, and the information shall be filed in such county court.” It was the evident purpose of this section to relieve the district courts of certain criminal actions by compelling them to be tried in the county courts having increased jurisdiction, and the language in § 8962, with reference to authorizing the county court or the county judge to issue warrants of arrest for persons against whom an “information” has been filed, was evidently intended to apply merely to cases wherein the accused had been bound over to the county court by a committing magistrate, in which cases the practice in the district court was intended to be made applicable to sucb county courts, so far as practicable. While •§ 8964 prescribes that “no preliminary examination shall be necessary before trial in criminal actions in the county court,” yet § 8961, aforesaid, clearly contemplates that such preliminary examinations may be held. That criminal actions which are instituted directly in the county court, and not before committing magistrates, must, as a basis for the issuance of a warrant of arrest, be instituted through a complaint verified upon oath or affirmation, is entirely clear. .In fact, this is imperative under the provisions of § 18 of our state Constitution. See §§ 10389, 10529, 10531, and 10535, Comp. Laws of 1913. See also State v. Gottlieb, 21 N. D. 179, 129 N. W. 460.

Appellant’s third assignment calls in question the rulings permitting the state, over defendant’s objection, to prove that Peterson, the owner -of the horses treated by defendant, paid for such treatment. There is no merit to this assignment; even though such payment is not made an essential element of the crime, it was clearly competent to show that defendant exacted and received compensation for his professional services, and tends to refute the claim that he was not, in treating such live stock, engaged in practising veterinary dentistry within the inhibition of the statute as contradistinguished from gratuitous and friendly assistance shown by one neighbor toward another. Such testimony was also competent for another reason. It tended to corroborate the recollection •of the witness as to the transaction.

Assignments number four, five, and six all relate to rulings permit-, ting the state to show by the witness Babcock, who was secretary of the •state board of veterinarians, that the records of his office do not show the issuance of any license to the defendant. We think a sufficient foundation was laid for the introduction of the record book, exhibit “B,” in evidence and that such book was clearly competent. We also fail to discover any prejudicial error in any of the rulings challenged by these assignments. The statute, § 2713, Comp. Laws of 1913, provides that the board shall issue a certificate to all applicants passing the required examination, and to all applicants who are eligible -to registration under § 2711, which certificates shall be signed by the president and secretary of the board. Said statute also makes such certificate •conclusive evidence of the holder’s right to practise veterinary medicine, .surgery, or dentistry in this state. It also requires the board to keep a record of all its proceedings and the name of each applicant for license,, and provides that “said books and records shall be prima facie evidence of all the matter therein recorded.” In the light of these statutory provisions, we entertain no doubt of the competency of the testimony objected to. See State v. Littooy, 52 Wash. 87, 100 Pac. 170, 17 Ann. Cas. 292.

Appellant’s 7th assignment challenges the ruling of the court in denying defendant’s motion, made at the close of the state’s case to dismiss the prosecution. The ground of the motion was that the testimony failed to disclose that defendant practised veterinary dentistry without a license, or that he has not a license to practise such veterinary dentistry. This assignment is not argued in appellant’s brief, it being merely stated that “no competent, relevant, or material testimony had been introduced by the state which was sufficient to sustain a verdict of guilty.” Such a general statement, without any attempt to set out reasons as a basis therefor, deserves the same brief treatment at the hands of this court. A consideration of the point serves to convince us that it is without merit. Furthermore, the contention here made is sufficiently answered elsewhere in this opinion.

The 8th assignment is likewise without substantial merit. It challenges the ruling permitting the witness Babcock to testify to the fact that under the rulings and regulations of the board of veterinarians an annual license fee of $3 is required, and that defendant had not paid such fee. The requirement as to the payment of such annual 'fee is statutory (Comp. Laws 1913, § 2715), and, hence, such testimony, even if incompetent, was nonprejudicial. It was entirely proper for such witness to testify to the nonpayment of such fee. In fact, the state had the burden of proving that defendant was not at the date of the transaction the holder of a license to practise such profession, and such testimony had a direct tendency to prove this fact.

The 9th assignment challenges the correctness of the following portion of the court’s instructions to the jury: “I charge you, gentlemen of the jury, as a matter of law that if you believe from the evidence beyond a reasonable doubt that the defendant on or about July 12, 1913, in Cass county, North Dakota, filed or cut off teeth of horses belonging to the witness Lewis Peterson, and that the defendant received and accepted pay therefor, and that the defendant did not have a permit to practise veterinary, dentistry witlain the state of North Dakota, then you should find the defendant guilty.” We fail to perceive any error in the giving of such instruction; nor does appellant’s brief contain any argument on authority in support of his contention.

Among other things the court charged the jury as follows: “To the jury exclusively belongs the duty of weighing the evidence and determining the credibility of the witnesses. With that the court has absolutely nothing to do. The degree of credit due to a witness, whether for the state or the defendant, should, among other things, be determined by his character and conduct, by his manner upon the stand, his relations to the controversy and to the parties, his hopes and fears, his bias or impartiality, the reasonableness or . otherwise of the statements he makes, the strength or weakness of his recollections viewed in the light of all other testimony, facts, and circumstances in the case. If any of the witnesses are shown knowingly to have testified falsely on this trial touching any material matters here involved, the jury are at liberty to reject the whole of their testimony unless the same is corroborated by other credible evidence in the case.”

By his 9th assignment, appellant predicates error upon the giving of the above instruction. His counsel concede, however, that this is the stereotype form of such an instruction, and would not be objectionable-if there was no issue or contradictions in the testimony; but he argues that in view of the fact that no testimony was offered by defendant such, instruction had a tendency to mislead and prejudice the jury against him by creating in the minds of the jury an impression that if the testimony introduced was true, they should convict. We fail to discover any merit in this contention. Of course, such instruction would be erroneous if, as appellant’s counsel contends, the fact that defendant operated on the teeth of Peterson’s horses and charged and collected a fee-therefor did not amount to practising dentistry within the meaning of § 2116, Comp. Laws 1913. If counsel’s contention be correct as to the meaning of .the word “practices” as used in such law, then obviously the state wholly failed in its proof, and the conviction cannot stand. Counsel argues that there must be a continuity of facts; that defendant, in order to come within the statute, must have practised dentistry habitually or frequently. In this we think counsel is in error. The correct rule is announced in State v. Reed, 68 Ark. 331, 58 S. W. 40. The statute there reads: “Section 4973. It shall be unlawful for any person to practise or attempt to practise dentistry or dental surgery in the state of Arkansas without first having received a certificate from the board of dental examiners; provided, this shall not be construed as preventing any regular licensed physician from extracting teeth, nor to prevent any other person from extracting teeth, when no charge is made therefor by such persons.” Defendant was indicted for practising dentistry without obtaining a certificate from the board of dental examiners. The evidence showed that he was at the time of the commission of the alleged offense a student under one Dr. Milan. The evidence also showed two instances in which defendant while so engaged performed dental work under the advice of such doctor, defendant performing the mechanical work, — one in extracting teeth and the other in filing teeth, — and that for the first work nothing was charged or received by him, and that for the latter work he charged and received a fee of $10. The court said: “From the language of the act under which this indictment was found, it is impossible to escape the conclusion that the performance of dental work and charging and receiving pay therefor is practising dentistry.”

The remaining assignments relate to the refusal of the trial court to give certain requested instructions. It is contended that these stated the law correctly, and that they were not covered in the charge as given. These requests are as follows: (1) “I charge you that any person who either practises veterinary medicine, surgery, or dentistry in this state, without having had issued to him a permit to so practise by the state board of veterinary medical examiners, is guilty of a misdemeanor. In this connection you will first determine whether it appears that no such permit has been issued by said board to this defendant. And it is the duty of the state to satisfy your minds beyond a reasonable doubt that no such permit has been issued to this defendant by said board. He is not required to prove that he has such a permit. The state charges that the defendant has no such permit, and the state must prove such charge so that you are convinced beyond any reasonable doubt that he has no such permit, before you can find the defendant guilty. If the testimony introduced by the state has not so convinced you, beyond any reasonable doubt, that no such permit has been issued to defendant, your verdict must be riot guilty.’ ” (2) “The defendant is not charged with practising veterinary medicine or surgery; but is only charged with prac iising veterinary dentistry without having a permit so to do. And I charge you that to ‘practise-veterinary dentistry’ is to do or perform the same habitually or frequently, to make a practice of; to carry on habitually; to exercise it as a profession or an art; and that the performance of one or more isolated or occasional acts of dentistry on teeth of animals does not constitute the practice of veterinary dentistry within the meaning of the law. And proof that on one occasion the defendant filed some sharp comers from the teeth of some horses would not constitute the practice of veterinary dentistry. To practise a thing is to carry it on habitually. This is the ordinary and usual meaning of the word ‘practise’ as found in the dictionaries.” (3) “And I charge you that ‘dentistry’ is the art, science, or profession of a dentist. And that a dentist is one whose profession or business it is to extract and repair teeth when diseased, or replace them with artificial ones when necessary.”

We see no error in the refusal to give such instructions. The first wras sufficiently covered in the court’s charge as follows:

“I charge you, Gentlemen of the juiy, as a matter of law, that if you believe from the evidence beyond a reasonable doubt that the defendant, on or about July 12, 1913, in Gass county, North Dakota, filed and cut off teeth of horses belonging to the witness, Lewis Peterson, and that the defendant received and accepted pay therefor, and that the defendant did not at that time have a permit or certificate to practise veterinary dentistry within the state of North Dakota, then when you should find the defendant guilty. ... In this case it is incumbent upon the state to establish all of the material allegations of the complaint in this case to your satisfaction beyond a reasonable doubt. Before you are .authorized to find the defendant guilty of the offense charged i'n the •complaint, you must be satisfied of his guilt beyond a reasonable doubt. If you entertain a reasonable doubt as to the guilt of the defendant, it is your duty to find him not guilty.”

The second request does not contain a correct statement of the law, •and the third was, in view of the explicit instructions as to what facts the state was bound to prove to warrant a conviction, wholly superfluous, and in any event its refusal was nonprejudicial.

It is, of course, elementary that error cannot be predicated upon a refusal to give requested instructions, where they are substantially cov ered. in the charge as given, or do not correctly state the law, or where it can properly be said that their refusal is, for any reason, nonprejudicial.

This disposes of all the assignments adversely to appellant, and necessitates an affirmance of the judgment. It is accordingly affirmed.