Ferner v. State
| Decision Date | 12 October 1898 |
| Docket Number | 18,646 |
| Citation | 51 N.E. 360,151 Ind. 247 |
| Parties | Ferner v. The State |
| Court | Indiana Supreme Court |
From the Jay Circuit Court.
Affirmed.
D. T Taylor and John M. Smith, for appellant.
W. A Ketcham, Attorney-General, and Merrill Moores, for State.
The appellant was charged by information with having on the 1st day of July, 1897, and continuously thereafter until the 1st day of January, 1898, unlawfully practiced dentistry without having first "obtained and procured a certificate of qualification and registration so to do, from the Board of Dental Examiners," and without, during the period aforesaid, being lawfully registered according to law, and not then and there, nor during any part of said period, being a lawfully registered surgeon or physician engaged in the practice of medicine or surgery. The charge is based upon sections 5595 et seq., Burns' R. S. 1894, the first of which provides that "it shall be unlawful for any one to practice dentistry * * * without being registered according to the provisions of this act." Other provisions require a board of examiners to grant certificates of registration to certain applicants, and certificates of qualification and registration to others. Section 5601, Burns' R. S. 1894, provides that "Any member of the Board of Examiners may grant a permit to practice dentistry to any person who shall file with said member his application therefor, but such permit shall only be valid until the next meeting of said board." It is urged that the charge was subject to the appellant's motion to quash by reason of the failure to negative the granting of the special permit authorized by the section just quoted.
We think it quite clear that it is made a crime to practice dentistry "without being registered." Registry, within the purpose of the law, relates to the permanent authority to practice dentistry, and the temporary permit is only a protection until the board shall meet to make the registry. The permit would be a bar to a prosecution, and available as a defense to a charge of practicing without registry. The information is sufficient to charge the absence of registry, although it may unnecessarily charge the failure to procure a certificate of qualification and registration. The one question upon the motion, therefore, is, should the possession of a special permit have been negatived? Exceptions in the nature of a defense, and those not a part of the clause creating the offense, but made by another section of the statute, need not be negatived in the charge, and need not be proved by the State. Russell v. State, 50 Ind. 174; State v. Maddox, 74 Ind. 105; Mergentheim v. State, 107 Ind. 567, 8 N.E. 568; Hewitt v. State, 121 Ind. 245, 23 N.E. 83; People v. Phippin, 70 Mich. 6, 37 N.W. 888; Harding v. People, 10 Colo. 387, 15 P. 727; Logan v. State, 5 Tex. Ct. App. 306; Hale v. State, 58 Ohio St. 676, 51 N.E. 154; Bishop's New Crim. Proc. 638, 639. The exception here is independent of the clause creating the offense, and was not required to be negatived.
It is insisted, also, that section 5596, Burns' R. S. 1894, is unconstitutional, as in violation of section 23, article 1 of the state constitution, forbidding the granting of privileges which shall not, upon the same terms, equally belong to all citizens. Said section provides for the appointment of a board of examiners consisting of five members, three of whom to be chosen by the Indiana State Dental Association. By this provision, it is claimed, a special privilege is given the Indiana State Dental Association of naming members of the Board of Examiners and prescribing the standard of qualification. It is not necessary that members of the association shall be appointed upon the board. Whether the law itself should prescribe the standard of qualification and whether it does so, are questions not presented. It is not objected that...
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