State v. Miller

• Decision Date: 25 October 1910
• Citation: 69 S.E. 365,68 W.Va. 38
• Court: West Virginia Supreme Court
• Parties: STATE v. MILLER.

69 S.E. 365

(68 W.Va. 38)

STATE

v.MILLER.

Supreme Court of Appeals of West Virginia.

Oct. 25, 1910.

(Syllabus by the Court.)

Indictment and Information (§ 72^*)—Sufficiency — Certainty—Disjunctive Allegations.

An indictment for practicing dentistry for a salary, fee, or reward, without a state license therefor, charging, not the substantive offense in general terms, but disjunctively the doing of certain acts, declared by the statute to constitute the practice of dentistry, using the disjunctive "or, " instead of the copulative conjunction and, " is bad for uncertainty, and will be quashed.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 195; Dec. Dig. § 72.*]

Error to Circuit Court, Randolph County.

O. A. Miller was convicted of practicing dentistry without a license, and brings error. Reversed, and prisoner discharged.

J. P. Scott, for plaintiff in error.

Wm. G. Conley, Atty. Gen., and D. E. Matthews, for the State.

POFPENBARGER, J. O. A. Miller complains of a judgment of the circuit court of Randolph county, rendered on a verdict, convicting him of the practice of dentistry without a license, which the statute makes a criminal offense.

His motion to quash the indictment for uncertainty therein having been overruled, he complains of this action on the part of the court. It charges disjunctively the doing of a number of acts, any one of which the statute declares shall constitute the practice of dentistry within the meaning of the act, if done for a salary, fee, or reward, to wit, performance of operations or parts of operations, treating of diseases or lesions of the human teeth or jaw and others, using the disjunctive "or, " instead of the copulative conjunction "and." The well-settled general rule is that this makes an indictment bad for uncertainty. In our decisions but one exception to it has been recognized or allowed, and that is in the case of indictments for the unlawful retailing of spirituous liquors. State v. Newsom, 13 W. Va. 859; Cunningham v. State, 5 W. Va. 508; Morgan's Case, 7 Grat. (Va.) 592. The principle of the exception has beenquestioned, if not disapproved, by this court, and tbe inclination is not to extend it. In State v. Charlton, 11 W. Va. 332, 27 Am. Rep. 603, the court refused to extend it to a very similar class of cases, and Judge Green, speaking for the court, said: "It may be perhaps that the indictment in Morgan's Case, 7 Grat. [Va.] 592, was held good, because it might have been considered that,...