State v. Hicks

• Decision Date: 27 May 1907
• Citation: 57 S.E. 441,143 N.C. 689
• Parties: STATE v. HICKS.
• Court: North Carolina Supreme Court

57 S.E. 441

143 N.C. 689

STATE

v.HICKS.

Supreme Court of North Carolina.

May 27, 1907.

1. Indictment—Statutory Offenses—Negativino Exceptions—Dentists—Right to Practice.

Revisal 1905, § 4468, forbids any person to practice dentistry who is not a graduate of a reputable dental school, and who has not received a certificate from the board of examiners, and section 4470 exempts from the operation of the former section persons who were practicing dentistry in the state before March 7, 1879, who, prior to February 25, 1890, had filed a statement with the board of dental examiners, etc. Held, that an indictment for violating section 4468 was not fatally defective for failure to negative the fact that defendant was within the excepted class of dentists.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 295-298; vol. 39, Physicians and Surgeons, § 9.]

2. Physicians and Surgeons—Dentists— Practicing Without License—Burden of Proof.

Where defendant was charged with practicing dentistry without having complied with Revisal 1905. § 4468, requiring examination and license, the burden was on defendant, if he claimed exemption from such provision, to show that he had practiced before March 7, 1879, and also that he had complied with the law as to filing a statement with the secretary of the board of examiners, as required by section 4470.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Physicians and Surgeons, § 10.]

3. Same—Verified Statement—Filing.

Revisal 1905, § 4468, prohibits persons from practicing dentistry who are not graduates of a reputable dental school, and have not received certificates of qualification from the board of examiners, and section 4470 creates an excepted class of dentists who had practiced in the state before March 7, 1879, if prior to February 25, 1890, they had filed a verified statement with the board of dental examiners showing name, residence, date of diploma or license, and date they began to practice. Held, that where a dentist claiming the right to practice, under section 4470, merely filed a defective affidavit with the clerk of the superior court, instead of the secretary of the board of examiners, it was insufficient, though the board of examiners had failed to prescribe the manner of verifying such statements, and the secretary had not furnished blanks on which such verification could be made, as required by Acts 1S87, p. 403, c. 178, § 3, and Acts 1889, p. 238, c. 228, § 2.

4. Same—Filing Certificate—Time.

Revisal 1905, § 4468. forbids persons from practicing dentistry who are not graduates of a reputable dental school, and who have not received a certificate of proficiency, and section 4470 exempts persons who were practicing dentistry before March 7, 1879, if, on or before February 25, 1890, they had filed a verified statement with the board of dental examiners, etc. Held, that the time of filing such statement by the members of the excepted class was not of the essence of the requirement, but was directory, so that a dentist filing such statement after the time prescribed was entitled to a certificate and to continue to practice.

Appeal from Superior Court, Cleveland

County; Ward, Judge.

J. J. Hicks was convicted of unlawfully and willfully practicing dentistry without having passed the examination and obtained the certificate required by law, and he appeals. Affirmed.

The defendant was prosecuted in the court below upon a warrant issued by a justice of the peace charging him with having, in October, 1906, "unlawfully and willfully practiced dentistry without having passed the examination and obtained the certificate required by law, contrary to the form of the statute." He was convicted by the justice, and appealed to the superior court. There the defendant moved to quash the warrant because, first, the act of the Legislature under which it was issued is unconstitutional, and, second, it is not alleged that the defendant was not engaged in the practice of dentistry in this state before March 7, 1879. The warrant was amended by permission of the court so as to meet the last objection, and the motion to quash was then overruled. It was admitted that the defendant had not passed an examination before the state board of dental examiners and received a certificate. There was evidence tending to show that he was engaged in the practice of dentistry in Catawba county, where he resided, and in other comities of this state, on and prior to March 7, 1879, and had continuously since been so engaged and was practicing in Cleveland county at the time mentioned in the warrant. There was also.evidence tending to show that he was not so engaged before the year 1884. Evidence was also introduced which tended to prove that the defendant went with his attorney to the office of the clerk of the superior court of Catawba county, where he resided, on July 15, 1889, and made and filed with the clerk an affidavit to the effect that he was lawfully engaged in the practice of dentistry before March 3, 1887, in said county, and that he paid the clerk his fee for a transcript of the same. This affidavit was filed in a book known as the "Registry of Dentists." It was further in evidence that blanks for registration had not been furnished to the clerk by the state board of examiners, as required by law. At the close of the testimony, the court charged the jury that if they believed the evidence, and were satisfied beyond a reasonable doubt of the existence of all the facts testified to by the witnesses, they should convict the defendant. The jury returned a verdict of guilty, judgment was entered thereon, and the defendant appealed, having duly reserved his exception to the charge of the court

Quinn & Hamrick and T. M. Hufham, for appellant.

Hayden Clement and B. C. Beckwith, for the State.

WALKER, J. (after stating the case). The course of legislation upon the subject of dentistry has been somewhat eccentric. Acts 1879, p. 265, c. 139, made it unlawful and a misdemeanor for any person but an authorized physician and surgeon to practice dentistry, unless he had graduated and received a diploma from some reputable dental institution, or had received a certificate from the board of examiners of the state dental society. Persons who had engaged in the practice of dentistry prior to the ratification of the act of March 7, 1879, were excepted from its operation. The provisions of that law were inserted substantially in the Code of 1883, and will be found in sections 3148 to 3156, inclusive. The Legislature, on March 3, 1887 (Acts 1887, p. 403, c. 178, § 4), amended the law by requiring all dentists within six months from the ratification of the act to be registered, as therein provided, with the secretary of the state board of dental examiners in a book kept for the purpose, and also specially required that the registration should follow a form to be prescribed by the said board, which should, upon application, provide blanks prepared by it. It was also required that the secretary of the board should furnish a certified list of those who had registered to the clerk of the superior court of each county, to be entered by him in a book or registry kept for the purpose. Failure to register as required by the act was made unlawful and a misdemeanor. Acts 1889, p. 238, c. 228, extended the time allowed for registration 12 months from the date of its ratification, which was February 25, 1889, or until February 25, 1900, and then provided as follows: "The state board of examiners shall within the above prescribed time, forward the necessary blanks for registration to the clerks of the superior courts of the respective counties, whose duty it shall be to notify all persons practicing dentistry of the said requirements in said counties." There were other amendments of the law not material to the point discussed in this case. The substance of the law was inserted in the Revisal of 1905 as sections 4468, 4469, 4470, 3642, and 3643, except that section 4, c. 178, p. 403, Acts 1887, does not seem to have been brought forward, though a somewhat similar enactment in regard to physicians and surgeons is to be found in the Revisal of 1905 as section 3646. The omission of that section of the act of 1887 is, perhaps, substantially supplied by other sections of the Revisal already mentioned. Section 4468 of the Revisal of 1905 forbids any person to practice dentistry who has not graduated at a reputable dental school, and who has not received a certificate of proficiency or qualification from the board of examiners. This certificate must be registered, and a failure to have it registered works a forfeiture of the certificate, which will not be restored except upon the payment of a penalty of $20 to the board for the general school fund. Section 4470 provides that section 4468 shall not apply to any person who was a dental practitioner in this state before March 7, 1879, if on or before February 25, 1890, he had filed a verified statement with the board of dental examiners showing his name, residence, date of diploma or license, and date of commencing the practice of dentistry. Section 3642 makes it a misdemeanor to practice dentistry without having first passed the required examination and received a certificate. This is the substance of what has been done in the way of securing the proficiency of those engaged in the practice of dentistry. Legislation of a similar kind has been held to be valid in several comparatively recent decisions of this court State v. Call, 121 N. C. 648, 28 S....