Burrow v. Hot Springs
Decision Date | 03 February 1908 |
Citation | 108 S.W. 823,85 Ark. 396 |
Parties | BURROW v. HOT SPRINGS |
Court | Arkansas Supreme Court |
[Copyrighted Material Omitted]
Appeal from Garland Circuit Court; W. H. Evans, Judge; affirmed.
STATEMENT BY THE COURT.
This was a prosecution had in the police court at the city of Hot Springs, based upon the following ordinance:
Sections 3 and 4 are not material to the issues in this cause.
The following affidavit was filed before the police judge of the city of Hot Springs on the 27th day of February, 1907, to wit:
Thereupon the following warrant of arrest was issued:
Said warrant was duly served upon the defendant, who appeared in police court on March 2, 1907, and the cause was continued for trial until March 4th, and afterwards until March 5, at which time the cause was tried before the said P. S. Bentz, police judge, who found the defendant was guilty. A fine of $ 100 was assessed, and his license to practice medicine revoked. From which judgment of conviction the defendant appealed to the circuit court.
Upon the trial in the circuit court, the defendant filed his demurrer in short upon the record in the cause, which demurrer was by the court overruled, and the defendant saved his exception.
Counsel for defendant renewed his demurrer and motion to dismiss the cause upon the ground that there is no specific person mentioned in the affidavit or warrant whom Dr. Burrow is alleged as having employed; and that the information filed is vague and indefinite on that account: which motion and demurrer was by the court overruled. The defendant saved his exception, and the same was noted of record.
Plaintiff, among other requests, asked the court to charge the jury as follows:
The following instructions were given at defendant's request:
The defendant requested the court to give to the jury the following instructions numbered 6 and 11, which request of the defendant was by the court denied:
The defendant was tried by a jury, who returned into court a verdict of guilty, fixing a fine of $ 25. Whereupon the trial court rendered judgment accordingly, and ordered that the license of the defendant to practice medicine and surgery in this State be revoked. From which judgment of the court the appellant has prosecuted this appeal.
Judgment affirmed.
R. G. Davies, C. V. Teague and Campbell & Stevenson, for appellant.
1. The ordinance is void. (a) Under Sec. 5438, Kirby's Dig., the city has no power to pass the ordinance. (b) Its power was not extended in such matters by the Gantt Act and § 5463, Kirby's Dig. 31 Ark. 462; 27 Ark. 467; 34 Ark. 553; Smith, Mod. Law Mun. Corp. § 1326; 50 La.Ann. 1181; 24 So. 187; 42 Tex.Crim. 256; 51 L. R. A. 654; 54 Ark 454; 27 Ark. 467; 71 Ark. 4; 68 Ark. 130.
2. The affidavit and warrant filed in this case were vague and indefinite, and the case should have been dismissed. Art. 11, § 10, Const.; 10 L. R. A. 717.
3. The testimony of the witnesses taken and reduced to writing in the police court was improperly admitted in evidence. The relation of principal and agent had not been shown, and the testimony of witnesses as to what Davis, Beverman, Lemly, and others said or did was incompetent. The statement of Osman Washington is open to the further objection that he was within the jurisdiction of the court, and he should have been produced in person. Art. II, § 10, Const.
4. It was error to give instruction 6, requested by appellee, It fails to state the law, and contradicts the fourth instruction given at appellant's request. 59 Ark. 98; 55 Ark. 397; 58 Ark. 480. And the addition of the clause "beyond a reasonable doubt" did not cure the defect in instruction 6. 59 Ark. 426.
5. The eighth instruction given for appellee, while correct as an abstract proposition of law, has no place in this case. Appellant alone...
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