State v. Sexton

• Citation: 79 P. 634,37 Wash. 110
• Parties: STATE v. SEXTON.
• Decision Date: 18 February 1905
• Court: United States State Supreme Court of Washington

79 P. 634

37 Wash. 110

STATE v. SEXTON.

Supreme Court of Washington

February 18, 1905

Appeal from Superior Court, King County; Henry L. Kennan, Judge.

C. H Sexton was convicted of practicing dentistry without a license, and appeals. Affirmed.

John R Parker and E. J. Brown,, for appellant.

Samuel R. Stern, for respondent.

ROOT, J.

Appellant was prosecuted upon an information charging him with the crime of practicing dentistry without a license,' in that he did 'treat a disease and lesion of the human teeth and did correct malpositions of the human teeth and jaws of one R. A. Netzer,' in violation of the of the provisions of the Dental Law (Laws 1901, pp. 314-318, c. 152). From a judgment of conviction by the superior court, he appeals to this court.

Appellant assails the constitutionality of this act, but that portion of the act involved in this case has been heretofore upheld by this court. See State ex rel. Smith v. Board of Dental Examiners, 31 Wash. 492, 72 P. 110; In re Thompson (decided Dec. 22, 1904) 78 P. 899. After introducing certain evidence at the trial, the state rested its case, whereupon the appellant moved for a nonsuit. Without ruling upon the motion, the court made a remark intimating that the evidence was insufficient. Thereupon respondent's attorney asked permission to introduce further testimony on the point under consideration. To this appellant's attorneys objected, but the objection was overruled, and the state proceeded to introduce further testimony. This action of the trial court is alleged as error. We are inclined to think that ordinarily this is a matter within the sound discretion of the trial court, and in the absence of a showing of an abuse of discretion, should not be reviewed by the appellate court. In the case of Tucker v. People, 122 Ill. 583-594, 13 N.E. 809, 812, the Supreme Court of Illinois said: 'The admission of further evidence after the case had been closed, and before the jury had retired, was a matter resting in the sound discretion of the court, and, as it does not appear that the discretion was abused, we do not think the court erred.' See State v. Buchler, 103 Mo. 203, 15 S.W. 331; State v. Flynn, 42 Iowa, 164; Kahlenbeck v. State, 119 Ind. 118, 21 N.E. 460; Dyer v. State, 88 Ala. 225, 7 So. 267; Wiggins v. State, 80 Ga. 468, 5 S.E. 503; 1 Bishop, New Crim. Pro. p. 582, § 966. We are not persuaded that the trial court abused its discretion in this instance.

Appellant further contends that there was not evidence sufficient to justify the submission of the case to the jury or to support a verdict of guilty. There was evidence that the appellant cleaned the teeth of Netzer, removing tartar therefrom, and made an examination of them in order to give an estimate of the cost of 'having them fixed'; that he 'sounded' then and 'picked' them. While part of this evidence was contradicted, it was nevertheless sufficient to carry the case to the jury, and, if believed, to justify a verdict of guilty, under the provisions of the law in question.

...