Kettles v. People

• Decision Date: 17 April 1906
• Citation: 77 N.E. 472,221 Ill. 221
• Parties: KETTLES v. PEOPLE.
• Court: Illinois Supreme Court

221 Ill. 221

77 N.E. 472

KETTLES

v.PEOPLE.

Supreme Court of Illinois.

April 17, 1906.

Error to Will County Court; Dwight C. Haven, Judge.

Charles H. Kettles was convicted of practicing dentistry without a license, and brings error. Affirmed.S. Russell Bowen, for plaintiff in error.

W. H. Stead, Atty. Gen., and Charles E. Woodward (W. D. Heise, State's Atty., of counsel), for the People.

BOGGS, J.

At the October term, 1905, of the county court of Will county an information containing 12 counts was filed against the plaintiff in error, charging violations of an act entitled: ‘An act to regulate the practice of dental surgery and dentistry in the state of Illinois, and to repeal an act therein named.’ Laws 1905, p. 319. The first, second, third, fifth, and sixth counts of the information were quashed by the court. The people entered a nolle prosequi as to the fourth and seventh counts, and the case went to trial upon counts 8, 9, 10, 11, and 12, which resulted in a verdict, on which judgment was entered, finding the plaintiff in error guilty in manner and form as charged in the ninth and tenth counts of the information. The ninth count charges that the plaintiff in error, ‘at and within said county of Will and state of Illinois aforesaid, did then and there unlawfully practice dentistry and then and there treat a lesion of a tooth of a human being, and then and there prepare and fill a cavity in a tooth in the mouth of one Lottie Kozlowsky, a more particular description of said treatment being to the informant unknown, without then and there having a license for the practice of dentistry in said county and state, and without then and there being previously registered and licensed to practice dentistry in said county and state, contrary to the form of the statute,’ etc. The tenth count, with the exception of the name of the person operated upon, is the same as the ninth, and these two counts are all that are in the record of this case. The evidence disclosed that the plaintiff in error had practiced dentistry in Will county before July 1, 1905, and that he had been engaged in such practice for a number of years. It was also shown by uncontroverted evidence that the plaintiff in error practiced dentistry in August and September, 1905. He was not registered as a dentist, nor does it appear that he ever had a license to practice in this state.

The contention of the plaintiff in error that the court erred in overruling his motion to quash the ninth and tenth counts of the information, on the ground that they were defective in not negativing the exception embraced in the statute creating the alleged offense, will be disposed of by what is said with reference to the contention of the plaintiff in error that the act does not apply in his case because it creates an exception in favor of old practitioners and persons who were engaged in the practice of dentistry prior to July 1, 1905, the time when the act became effective. The disposal of this contention requires the consideration of the first sentence of section 3 of the act of 1905, which reads: ‘No person, unless previously registered or licensed to practice dentistry in this state at the time this act shall become operative, shall begin the practice of dentistry or dental surgery, or any branches thereof, without first applying for and obtaining a license for such purpose from the Illinois state board of dental examiners.’ We must also consider that prior to the act of 1905 it was unlawful, under the act of [221 Ill. 227]1881, to practice dentistry in this state without being registered or licensed. The plaintiff in error strenuously urges that this provision of the act applies only to those persons who began the practice of dentistry after the act took effect, and lays special stress upon the words ‘shall begin,’ in support of the contention, and insists that unless those words be totally disregarded, contrary to the expressed legislative intention, a person who had practiced dentistry, even illegally, before the passage of the act under consideration, cannot be subjected to the penalty therein provided. Penal statutes are to be strictly construed, but not with such technicality as to defeat their purpose and the clearly expressed intention of the lawmakers. The act clearly provides a penalty for any person practicing dentistry ‘unless previously registered or licensed to practice dentistry in this state,’ and to hold that the Legislature, by the use of the words ‘shall begin,’ intended to grant immunity from punishment to persons who had been practicing dentistry unlawfully prior to and at the time the act took effect, would be wholly unwarranted and a very narrow and technical construction. The plaintiff in error, not having been previously registered or licensed to practice dentistry in this state, is within the terms of the statute and subject to its penalties. People v. Langdon, 219 Ill. 189, 76 N. E. 387.

The position of the plaintiff in error that the court erred in overruling his motion to require the state to elect upon which count of the information trial would be demanded is without merit. The information, in each of the several counts thereof, charged the plaintiff in error with practicing dentistry, without a license, upon some particular person therein named. In prosecutions for misdemanors several distinct offenses of the same kind, requiring punishment of a like nature, may be joined in separate counts of the same pleading. Kroer v. People, 78 Ill. 294; 10 Ency. of Pl. & Pr. 549. The reason of the rule against joinder of counts is, that such joinder may perplex the prisoner in his defense, or prejudice him in his challenge of the jury, or cause confusion in the infliction of punishment. There could have been no such effect here, for each of the counts in the information was of the same nature, and they allrelated to the unlawful practice of dentistry and called for the same character and extent of punishment. The information charged that the plaintiff in error, on the first day of October, 1905, unlawfully practiced dentistry. The proof showed that the plaintiff in error performed certain dental work in August and September, 1905, and it is urged this variance is fatal, and that the court should have peremptorily instructed the jury to find the plaintiff in error not guilty. When the time of the commission of an offense is not of the essence it need not be precisely laid, and it is sufficient if it be laid at any time before the filing of the information and within the period of limitation. Proof that the offense was committed on any day within the period of limitation, and before the information was filed, was sufficient, and a conviction thereon could be pleaded in bar of any other information or indictment for the same offense alleged to have been committed on any day within that time. Koop v. People, 47 Ill. 327.

The objections of the plaintiff in error to the eight instructions given for the people are disposed of by what has already been said. Instructions Nos. 2 and 3 asked by the plaintiff in error were properly refused by the court. Instruction No. 2 told the jury that the defendant could not be found guilty ‘unless the jurors are able, upon their conscience, to say that the evidence before them by the state or people adduced is sufficient to show, beyond a reasonable doubt, the existence of every fact necessary to constitute the crime charged.’ Instruction No. 3, in part, stated, ‘he is not required to prove himself innocent, or to put in any evidence at all upon that subject.’ These instructions placed the burden of proving that the plaintiff in error did not have a license to practice dentistry upon the prosecution, and were for that reason incorrect. Whether the plaintiff in error was licensed to practice dentistry in the state of Illinois was a matter of defense which devolved on him to establish. Where the subject-matter of a negative averment lies peculiarly within the knowledge of the defendant, the averment, unless disproved by the defendant, will be taken as true. Such is the rule in all prosecutions for the doing of an act which the statute prohibits to be done by any person except those who are duly licensed. Noecker v. People, 91 Ill. 468;Williams v. People, 121 Ill. 84, 11 N. E. 881. In addition to that, the doubt which works an acquittal is not as to some particular fact, but as to the guilt or innocence of the defendant on the whole of the evidence, as we have frequently held.

It is insisted that said act of July 1, 1905, contravenes sections 1 and 2 of article 2 and section 22 of article 4 of the Constitution of the state of Illinois, and section 1 of article 14 of the amendment to the Constitution of the United States. That legislation prescribing regulations for securing the admission of qualified persons to professions and callings demanding special...