State v. Faatz

• Decision Date: 30 April 1910
• Citation: 76 A. 295,83 Conn. 300
• Court: Connecticut Supreme Court
• Parties: STATE v. FAATZ.

76 A. 295

83 Conn. 300

STATE

v. FAATZ.

Supreme Court of Errors of Connecticut.

April Term, 1910.

Appeal from Criminal Court of Common Pleas, New London County; Charles B. Waller, Judge.

William K. Faatz was convicted of performing dental operations without a license, and he appeals. Reversed and remanded.

There were originally two counts in the information, but a nolle was entered as to the second count. The first count only is here involved. This count charged that the defendant did during the week ending on the 3d day of October, 1908. at Norwich, "perform dental operations on patients, in the office of a licensed dentist, without a license from the dental commissioners of the state of Connecticut." The defendant first demurred to the information; one ground of demurrer being that the information did not charge any offense under the act in question. The court overruled this demurrer. The defendant then pleaded not guilty, and the jury found him guilty as charged in the information. He moved in arrest of judgment, and this was denied. The court sentenced him to pay a fine of $25 and costs. The defendant appealed from this judgment, claiming error in overruling the demurrer, in denying the motion in arrest, in the charge of the judge, and in the latter's refusal to charge as requested by the defendant.

The defendant was a young man employed in the office of Dr. Frederick C. Jackson, then a licensed dentist in the city of Norwich. One day he placed some cotton in the tooth of a man named Lavalle, and on another day later he filled this tooth. For this service a fee of $1.50 was collected by the defendant, not for himself, but for Dr. Jackson, the proprietor of the office. The defendant held no license from the dental commissioners, and it was the claim of the state that these acts constituted a crime under the statute in question. The defendant's counsel requested the court to instruct the jury that the information did not charge the defendant with the offense of engaging in the practice of dentistry without a license, under the provisions of chapter 249 of the Public Acts of 1907, and that the performing of dental operations by the defendant without a license in the office of a licensed dentist was not an offense under the provisions of chapter 134, Pub. Acts 1905, as amended by chapter 249, Pub. Acts 1907, or under any law of this state, and such facts, if proved, would constitute no violation of the law. The court did not so charge, but instructed the jury that: "A person who performs any operation or furnishes any treatment for a disease of the human teeth or jaw comes within the prohibition of the statute. It is not necessary that a person should engage continuously in the practice of dentistry, for any given time; one treatment or operation is prohibited just as much as a continued practice, including several treatments and several operations. Neither is it necessary that a person should have an office or any regular place of business or advertise in any particular manner as a practicing dentist; the performance of one operation, or the giving of one treatment, is under the law an offense when the act is done by a person who is not licensed or registered by the dental commissioners." The defendant claimed that this and some other parts of the charge holding doctrine akin to this were erroneous. Error.

Chas. F. Thayer and Brown & Perkins, for appellant.

Chas. B. Whittlesey, Pros. Atty., for the State.

ROBINSON, J. (after stating the facts as above). The questions raised on the demurrer, the motion in arrest, and the charge of the court, we will examine together, as they all involve the construction of these Public Acts. We are here dealing with a penal stature, not a remedial law, and as far hack as 1821 this court held that penal statutes must be strictly construed, or "more correctly it may be said that such laws are to be expounded strictly against an offender and liberally in his favor. This can only be accomplished by giving to them a literal construction, so far as they operate penally; or at most by deducing the intention of the Legislature from the words of the act. In extension of the letter of the law nothing may be assumed by implication; nor may the mischief intended to be prevented or redressed as against the offender be regarded in its construction. It was the object of the principle to establish a certain rule, by conformity to which mankind should be safe and the discretion of the judge limited. How much this must contribute to the security and enjoyment of the citizen is too palpably obvious to require illustration." Daggett v. State, 4 Conn. 50, 10 Am. Dec. 100.

The act under which this information is brought provides that "no person shall engage in the practice of dentistry, unless such person shall have first obtained a license" from the dental commissioners, and further that "the unlawful practice of dentistry for each week shall be a separate offense." A "dentist" is one whose business is to clean, extract, or repair natural teeth, and to make and to insert artificial ones. "Dentistry" is the art or profession of a dentist. The "practice of dentistry," then, is the practice of the art or profession of a dentist. Engaging in the practice of dentistry without a license is made a crime by this law.

This information does not charge the defendant with the offense of "engaging in the practice of dentistry without a license." Quite evidently the public prosecutor did not intend so to charge. If he had, he would undoubtedly have followed the language of the statute. But he does charge that the defendant performed dental operations on patients in the office of a licensed dentist without a license. The theory of this prosecution is that an unregistered assistant or student of a licensed dentist cannot perform a single dental operation without becoming liable under this act and that the act forbids this. And this appears to have been the attitude of the trial court in construing this act. This view is erroneous. Such dental operations are not in terms forbidden, and the language of the act cannot be extended by implication. State v. McMahon, 53 Conn. 407, 5 Atl. 596, 55 Am. Rep. 140.

This law is not to be construed as if it were a remedial law. Were we to adopt the contention of the state, the court...