State v. Carlisle

• Decision Date: 14 December 1912
• Citation: 139 N.W. 127,30 S.D. 475
• Parties: STATE v. CARLISLE.
• Court: South Dakota Supreme Court

139 N.W. 127

30 S.D. 475

STATE v. CARLISLE.

Supreme Court of South Dakota

December 14, 1912

Appeal from Circuit Court, Minnehaha County; Robert B. Tripp, Judge.

C. L Carlisle was convicted of practicing dentistry without a license, and he appeals. Affirmed.

See also, 132 N.W. 686.

Sam H Wright, of Sioux Falls, for appellant.

Royal C. Johnson, Atty. Gen., M. Harry O'Brien, Asst. Atty. Gen., Martin Bergh, State's Atty., of Sioux Falls (Bailey & Voorhees, of Sioux Falls, of counsel), for the State.

HANEY J.

The defendant, having been convicted of practicing dentistry without a license, removed the record of such conviction to this court for review by an appeal from the judgment of the circuit court and its order denying the defendant's application for a new trial.

Upon being called to plead, the defendant moved the court to set aside the information, for the reason that the complaint filed with the committing magistrate was made by a person who was not personally cognizant of any fact set forth therein, supporting such motion by the affidavit of the defendant to the effect that the person who swore to the complaint did not set forth therein any fact within his personal knowledge, or to which he could testify as a witness. This motion was properly overruled. It presented no ground for setting aside the information recognized by the statute. Rev. Code Crim. Proc.§ 263. State v. Bank, 2 S. D. 538, 51 N.W. 337; State v. Bank, 3 S. D. 52, 51 N.W. 780; State v. Tough, 12 N.D. 425, 96 N.W. 1025; State v. Foster, 14 N.D. 561, 105 N.W. 938.

A demurrer to the information, alleging numerous defects, was overruled. It will be assumed that these alleged defects are embraced by the statutory grounds (1) that the information does not substantially conform to the requirements of the Code of Criminal Procedure, (2) that the facts stated do not constitute a public offense, or (3) that the information contains matter which, if true, would constitute a legal bar to the prosecution. Under the first ground it is urged that the information is defective, for the reason that the phrase "against the peace and dignity of the state of South Dakota" occurs in the body of the information and not at its conclusion. The contention is untenable. In this state all the forms of pleading in criminal actions, and rules by which the sufficiency of pleadings is to be determined, are those prescribed by the Code of Criminal Procedure. Rev. Code Crim. Proc. § 219. Such rules do not require the use of the phrase in any part of an information or indictment. Id. §§ 221, 229. State ex rel. v. Swenson, 18 S.D. 196, 99 N.W. 114. And if such phrase was required its position in this information would be a defect or imperfection of form, which could not tend to the prejudice of the substantial rights of the defendant upon the merits, and therefore should not be allowed to affect the sufficiency of the pleading. Rev. Code Crim. Proc. § 230. Attention is called to section 38, art. 5, of the state Constitution, which provides: "All process shall run in the name of the 'State of South Dakota.' All prosecutions shall be carried on in the name, and by authority, of the 'State of South Dakota."' The first provision has no application to an information. An information is not "process," within the meaning of such provision. Nor has there been any violation of the second provision in this instance. It is not essential that an information shall contain a recital, in terms, that the prosecution is by authority of the state. "It is sufficient if the record shows that the prosecution is so conducted." State v. Thompson, 4 S. D. 95, 55 N.W. 725. Moreover, the state is named as party plaintiff, and the information has this recital: "Martin Bergh, state's attorney of Minnehaha county, in the Second judicial circuit of the state of South Dakota, duly and legally elected, qualified, and acting according to law, in the name of, and by authority, of the state of South Dakota, upon his oath, informs the court"-followed by a statement of the facts constituting the offense charged, and facts intended to show a second violation of the statute.

It is contended that the information is not sufficiently direct and certain as to the circumstances of the offense charged, in that it does not state the names of the persons treated and the date of each treatment. The contention is not tenable. The distinction between an information which charges an offense consisting of a single transaction and one which charges an offense consisting of a series of acts has been recognized by this court. Where one transaction, as one sale of intoxicating liquor, constitutes the crime charged, it has held that the name of the purchaser must be stated. State v. Burchard, 4 S. D. 548, 57 N.W. 491. But whenever the crime consists of a series of acts, such as engaging in the business of selling without a license, each act need not be specifically described; for it is not each, or all the acts of themselves, but the practice or habit, which constitutes the offense. State v. Williams, 11 S.D. 64, 75 N.W. 815. The case at bar is clearly within the reason of the latter rule. "Where the reason is the same, the rule should be the same." Rev. Civil Code, § 2409.

There is no merit in the claim that the information fails to state a public offense, because the act upon which the prosecution is based violates section 21, art. 3, of the state Constitution: "No law shall embrace more than one subject, which shall be expressed in its title." The specific objection to the act is, as we understand the argument of counsel, that the penalties prescribed therein are not germane to its title. The title of chapter 4, Laws 1909, is as follows: "An act to provide for state board of dental examiners, to insure the better education of practitioners of dental surgery and to regulate the practice of dentistry in the state of South Dakota." The general subject, or purpose of the act, as fairly indicated by the language of the title, is the regulation of the practice of dentistry. "When the title of a legislative act expresses a general subject or purpose which is single, all matters which are naturally and reasonably connected with it, and all measures which will, or may, facilitate the accomplishment of the purpose so stated, are germane to its title." State v. Morgan, 2 S. D. 32, 48 N.W. 314. Clearly penalties for the violation of any prescribed regulations are germane to such regulations; are, indeed, necessary to accomplish the purpose for which the regulations are prescribed.

The information charges that the defendant was engaged in the unlawful practice during the months of January, February, and March, 1912. It also alleges facts showing a conviction on September 1, 1910, upon an information charging a violation of the law upon which the present prosecution is based, during the months of December, 1909, and January, 1910, for the purpose of having the punishment for a second offense imposed. Assuming the question to be properly raised by demurrer, the contention is not tenable that it appears, on the face of the information, that the present prosecution is barred by the former conviction, for the obvious reason that the period covered by the present charge is alleged to have begun on a date subsequent to the date of the former conviction; it affirmatively appearing that the series of acts involved in the former prosecution are not the same as those involved in the present action.

There was no abuse of discretion in denying defendant's application for a continuance until the next term. He states in his affidavit: "That since the information in the above-entitled action was filed F. W. Cannon (a resident of said county and state), who is a necessary and material witness for my defense therein, having broken one of his arms, without my knowledge, consent, or procurement, has left said county and state and gone to the home of his parents in Jasper county, in the state of Missouri, and that he has sent me through the mails the affidavit of C. M. Ketchum, M. D. which is marked 'Exhibit A' and made a part of this affidavit, which discloses the present condition of the said Cannon. That said Cannon is beyond the jurisdiction of this court, and I am unable to obtain his appearance at the present term thereof. That since learning of the fact that said Cannon had left this jurisdiction I have not had time to take his deposition, but have every reason to believe that I can procure his personal presence at the next term of this court and produce his evidence if a postponement or continuance of said action can be had. That the said Cannon had faithfully promised to be present and testify in my behalf upon the trial of this action, and his failure to do so is a complete surprise, and that, as hereinbefore stated, the evidence of said Cannon is...