South Carolina State Bd. of Dental Examiners v. Breeland

• Decision Date: 12 June 1946
• Docket Number: 15848.
• Citation: 38 S.E.2d 644,208 S.C. 469
• Parties: SOUTH CAROLINA STATE BOARD OF DENTAL EXAMINERS v. BREELAND.
• Court: South Carolina Supreme Court

38 S.E.2d 644

208 S.C. 469

SOUTH CAROLINA STATE BOARD OF DENTAL EXAMINERS v. BREELAND.

No. 15848.

Supreme Court of South Carolina

June 12, 1946

Appeal from Common Pleas Court of Orangeburg County; E. H Henderson, Judge.

Special proceeding by the South Carolina State Board of Dental Examiners against Dr. B. H. Breeland, respondent, to revoke the respondent's license to practice dentistry on ground that respondent had been guilty of immoral or dishonorable conduct as shown by a conviction on a charge of rape. From a judgment dismissing the petition, the petitioner appeals.

Conviction of dentist for rape constituted a proper ground for revocation or suspension by circuit judge of dentist's license, though dentist was pardoned. Code 1942, §§ 5199, 5210.

John M. Daniel, Atty. Gen., T. C. Brown, of Columbia, and Zeigler & Brailsford, of Orangeburg, for appellant.

Edgar A. Brown and Jas. Julien Bush, both of Barnwell, A. J Hydrick, of Orangeburg, and J. D. Parler, of St. George, for respondent.

OXNER, Justice.

This is a special proceeding instituted by the South Carolina State Board of Dental Examiners, as authorized by Section 5210 of the 1942 Code, to revoke the license to practice dentistry issued to Dr. B. H. Breeland. The appellant, which will hereafter be referred to as the Dental Board, filed a petition in the Circuit Court alleging that Dr. Breeland had been guilty of immoral or dishonorable conduct as shown by his conviction on a charge of rape. Upon return being made to the petition, a hearing was held in the Circuit Court, and the petition was dismissed. This appeal followed.

The respondent was licensed by the Dental Board in 1937. He practiced his profession at Holly Hill, in Orangeburg County until 1943. On September 18, 1943, he was convicted of the crime of rape in that county, sentenced to confinement in the state penitentiary for a period of eighteen years, and was later granted a pardon.

The respondent in his return admitted that he had been convicted of rape as alleged in the petition, but denied that he was guilty as charged.

Upon the hearing before the Circuit Judge, the appellant offered in evidence the indictment for rape returned by the grand jury, the verdict endorsed thereon of guilty with recommendation to mercy by the trial jury, and the sentence imposed by the Court. A resolution of the Dental Board was also offered in evidence, wherein it was stated that on the record of the conviction of Dr. Breeland the Dental Board believed that he 'has been guilty of immoral and dishonorable conduct which would prevent it from issuing to him a certificate to practice.' Also, that the Board did not consider him a person of good moral character, or one who could be trusted to conduct an honorable or honest dental practice. Oral evidence was likewise introduced from various officers of the Dental Board to the effect that a license to practice dentistry would not have been issued to Dr. Breeland in the first instance, had he been previously convicted of rape as shown by the court record. A transcript of the testimony offered by the State at the trial of the respondent in the Court of General Sessions was excluded by the Judge upon the ground that it was inadmissible.

The respondent invoked the general rule to the effect that a judgment in a criminal prosecution cannot be received in a subsequent civil action to establish the truth of the facts on which it was based, and contended that he was entitled to a trial de novo. The Circuit Judge adopted this view, holding that the record of conviction in the criminal action afforded no proof of the guilt of the respondent, either prima facie or conclusive; and further held that since the Dental Board had offered no proof that respondent was guilty of rape, except the record of his conviction in the criminal court, the petition would necessarily have to be dismissed for lack of proof of guilt.

The statute--Section 5210--provides: 'Any circuit court judge of this state shall have the power and authority, by proper order, after a hearing duly had on a petition of any person or by the state board of dental examiners to revoke or suspend, for any period of time practice under any license issued in this State to any dentist or dental hygienist, for any one of the following causes shown at a hearing before it, to wit: * * * where one has been guilty of any immoral or dishonorable conduct which would prevent the board, in its sense of honor, from issuing the certificates of practice provided for in section 5207 (5199) * * *.'

It is provided in Section 5199 that each applicant for a liense must be at least twenty-one years of age, of good moral character and reputation, and shall submit such proof as the board may require as to character and firmness. This section of the Code further provides: 'If the board shall become convinced that an applicant is of such moral character that they believe the applicant cannot be trusted to conduct an honorable or an honest practice in the State, they shall have the right to decline to allow the applicant to take the prescribed examination, or may have the right to decline to issue a license regardless of other qualifications applicant may possess.'

Respondent takes the position that neither the Dental Board nor the Court is authorized under Section 5210 to revoke a license to practice dentistry on the sole ground that the holder of the license has been convicted of a crime involving moral turpitude. The point is emphasized that the statute does not use the word 'convicted', but reads 'has been guilty of any immoral or dishonorable conduct.'

Appellant concedes the existence of the general rule that a judgment of conviction in a criminal prosecution is not an adjudication binding the defendant in a subsequent civil action based on the same facts, but challenges the application of the rule to this case as being incongruous and unsound in principle. It is contended that the record of conviction should have been received as conclusive evidence of guilt.

The general rule just adverted to finds support in several of our cases upon which the Circuit Judge relied and by which he felt bound: Frierson v. Jenkins, 72 S.C. 341, 51 S.E. 862, 110 Am.St.Rep. 608, 5 Ann.Cas. 77; Fonville v. Atlanta & C. Air Line R. Co., 93 S.C. 287, 75 S.E. 172; Keels v. Atlantic Coast Line R. Co., 159 S.C. 520, 157 S.E. 834; Globe & Rutgers Fire Ins. Co. v. Foil, 189 S.C. 91, 200 S.E. 97.

The question has been the subject of a number of annotations: 11 L.R.A.,N.S., 653; 21 Ann.Cas. 1184; 31 A.L.R. 261; 57 A.L.R. 504; 80 A.L.R. 1145; 130 A.L.R. 690. The source of this rule dates back towards the beginning of the common law. The reasons generally assigned for it are difference in parties, lack of mutuality, and dissimilarity in the procedure and the degree and elements of proof. The reasons for the application of the rule are stated in Fonville v. Altanta & C. A. L. R. Co., supra [93 S.C. 287, 75 S.E. 173], as follows: 'The want of mutuality, arising out of the fact that the parties to the record are not the same, and the fact that the course of the proceedings and the rules of decision in the two courts are different. A higher degree of proof is required in criminal than in civil cases.'

Many courts, recognizing that the lapse of time has tended to dissolve many substantial distinctions between civil and criminal trials, have reached the conclusion that the most logical reason for the rule is that there is a difference in the parties and in the quantum of proof required. Certainly when a judgment of conviction is offered in a civil proceeding as evidence against the party convicted, he is in no position to complain of a difference in the degree of proof which is so much in his favor.

While some courts have rigidly adhered to the general rule to the effect that a judgment of conviction cannot be given in evidence in a purely civil action to establish the truth of the facts on which it was rendered, many others have relaxed or modified the rule in certain cases to the extent of permitting the introduction of the criminal conviction as prima facie evidence of the facts involved, and in at least one jurisdiction, the judgment of conviction has been held to be conclusive.

In Schindler v. Royal Insurance Co., 258 N.Y. 310, 179 N.E. 711, 712, 80 A.L.R. 1142, the Court held that a conviction of the plaintiff of the crime of presenting to the defendant insurance company a false and fraudulent proof of loss was prima facie evidence of such fact in an action on the insurance policy, defended on the ground that it was void by reason of the false and fraudulent statement of loss. The Court there strongly intimated that probably the sounder view was that such a judgment should be conclusive but felt that it was bound by established precedents, and finally reached the following conclusion: 'It would be an unedifying spectacle if the courts should now apply the strict rule which excluded all reference to the judgment of conviction in the civil action as evidence tending to establish the material facts. We shall, however, continue to hold that it is not effective as a plea in bar.'

One member of the Court, however, dissented and stated that he thought the judgment should be conclusive for the reasons stated in Eagle, Star & British Dominions Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490.

In the Virginia case mentioned plaintiff brought an action to recover on a fire insurance policy issued to him upon a stock of goods. On the trial of the case the insurer offered in evidence a judgment showing that the plaintiff had been previously convicted of the offense of wilfully burning the same stock of goods with intent to defraud the insurer. The...