State v. Williams

• Decision Date: 10 February 1937
• Docket Number: 26729.
• Parties: STATE v. WILLIAMS.
• Court: Indiana Supreme Court

5 N.E.2d 961

211 Ind. 186

STATE v. WILLIAMS.

No. 26729.

Supreme Court of Indiana

February 10, 1937

Appeal from Criminal Court, Lake County; Wm. J. Murray judge.

Fred A. Egan and J. Edwin Smith, both of Gary, Philip Lutz, Jr. Atty. Gen., and James D. Sturgis, Deputy Atty. Gen., for the State.

Oscar B. Thiel, of Gary, for appellee.

HUGHES Judge.

This was a prosecution commenced in the city court of Gary, Ind by filing an amended affidavit in two counts which are as follows:

'Count I. The undersigned affiant, being first duly sworn upon his oath deposes and says that Florence Williams at and in the City of Gary, County of Lake, State of Indiana, on or about the 17th day of February, 1936, did then and there unlawfully practice dentistry, not then and there being at the time of such practice a dentist duly licensed to practice as such in this state and registered in the office of the Clerk of the Circuit Court of this County, contrary to the form of the Statute in such case made and provided against the peace and dignity of the State of Indiana.

'Count II. The undersigned affiant, being first duly sworn upon his oath deposes and says that Florence Williams at and in the City of Gary, County of Lake, State of Indiana, on or about the 17th day of February, 1936, did then and there unlawfully aid or abet one W. W. Tarr, Jr., whose true christian name is unknown, in practicing dentistry while at said time the said W. W. Tarr, Jr., whose true christian name is unknown, was not a dentist duly licensed to practice as such in this State and registered in the office of the Clerk of the Circuit Court of this County, contrary to the form of the Statutes in such cases made and provided and against the peace and dignity of the State of Indiana.'

The appellee filed a motion to quash on both counts of the affidavit, which was overruled by the judge of the city court. The defendant was arraigned upon said charge, and pleaded 'not guilty.' She was tried and found guilty as charged in count 1, and not guilty in count 2 of the amended affidavit; and the court entered judgment against said appellee on the first count.

An appeal was prayed to the Lake criminal court, and a transcript of the appeal filed in said court. In the criminal court of Lake county, the appellee filed a motion to quash the first county of the amended affidavit for the following reasons:

'(1) That said first count of the amended affidavit does not state facts sufficient to constitute a criminal offense.

'(2) That said first count of the amended affidavit does not state a public offense with sufficient certainty.'

The appellee further moved to quash count 2 of the amended affidavit for the same reasons as assigned in the motion to quash the first count.

The motion to quash the first count of the affidavit was sustained, to which ruling the State excepted and refused to plead further. The appellee was discharged, and judgment entered accordingly, to which judgment the State excepted and prayed an appeal of the cause to this court from the lower court's ruling, sustaining appellee's motion to quash.

The error assigned by the State is that the court erred in sustaining the appellee's motion to quash the first count of the affidavit.

The first count of the affidavit is as follows: 'The undersigned affiant, being first duly sworn upon his oath deposes and says that Florence Williams at and in the City of Gary, County of Lake, State of Indiana, on or about the 17th day of February, 1936, did then and there unlawfully practice dentistry not then and there being at the time of such practice a dentist duly licensed to practice as such in this state and registered in the office of the Clerk of the Circuit Court of this County, contrary to the form of the Statute in such case made and provided, against the peace and dignity of the State of Indiana.'

The affidavit follows the language of the statute which is subsection (1) of section 63-523, Burns' 1933, section 5608, Baldwin's Ind.St.1934, and is as follows: 'Shall practice dentistry, in any county of the state, not being at the time of such practice a dentist duly licensed to practice as such in this state, and registered in the office of the clerk of the circuit court of such county, pursuant to the provisions of this act.'

'Practicing dentistry' is defined in section 63-522, Burns' 1933, section 5607, Baldwin's Ind.St.1934, and is as follows: 'Any person shall be said to be practicing dentistry within the meaning of this act who uses the word 'Dentist,' or 'Dental Surgeon,' or the letters 'D.D.S.' or 'D.M.D.,' or other letters or titles in connection with his name, which, in any way represents him as engaged in the practice of dentistry; or owns or operates a dental office, or is the manager or conductor of the same, or advertises or permits to be advertised by sign, card, circular, handbill, newspaper, radio or otherwise that he can or will attempt to perform dental operations of any kind, or that he will diagnose or profess to diagnose, or treat or profess to treat any of the lesions or diseases of the human oral cavity, teeth, gums, maxillary or mandibular structures, or makes X-ray pictures of the human teeth or jaws, or extracts human teeth, corrects malpositions of teeth or jaws, or supplies artificial teeth as substitutes for natural teeth, administers dental anesthetics, either general or local, or engages in practices included in the curricula of recognized dental colleges: Provided. That this section shall not apply to an employee or assistant of a regularly licensed and practicing dentist, engaged in making X-ray pictures in the office of such dentist, and under his direction; And, provided, further, That nothing in this act shall interfere with the performance of mechnical work on inanimate objects by any person employed in or operating a dental laboratory; And, provided, further, That this act shall not prevent dental students from performing dental operations under the supervision of competent instructors within the dental college or dental school of a university recognized by the Indiana state board of dental examiners, or in any public clinic under the supervision of the authorized superintendent of such clinic, authorized under the authority and general direction of the board of health or school board of any city or town in Indiana; And, provided, further, That legally licensed druggists of this state may fill prescriptions of legally licensed dentists of this state for any drug necessary in the practice of dentistry.'

Section 63-513, Burns' 1933, section 5598, Baldwin's Ind.St.1934, among other provisions, provides: 'In charging any person in a complaint for injunction, or in an affidavit, information or indictment, with a violation of this law by practicing dentistry without a valid license, it shall be sufficient to charge that such person did, upon a certain day and in a certain county, engage in the practice of dentistry, he not having a valid license so to do, without averring any further or more particular facts concerning the same.'

Section 63-523, burns' 1933, section 5608, Baldwin's Ind.St.1934, provides:

'Any person, firm or corporation shall be guilty of a misdemeanor, and, upon conviction thereof, shall be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), or by imprisonment in the county jail for not less than thirty (30) days, or by both such fine and imprisonment, in the discretion of the court who:

'(1) Shall practice dentistry, in any county of the state, not being at the time of such practice a dentist duly licensed to practice as such in this state, and registered in the office of the clerk of the circuit court of such county, pursuant to the provisions of this act; or'

(2) shall employ a nonlicensed dentist; (3) shall offer to sell, or sell licenses, diplomas, and certificates; (4) shall purchase a diploma, certificate or transcript, with the intent that it shall be used as evidence of another's qualifications than the one on whom it was conferred; (5) shall use fraudulent and counterfeited certificates; (6) shall practice under the name of another; (7) shall assume title or degree; (8) shall falsely impersonate another at an examination. (Our language.)

It is contended by the appellant that the charge in the affidavit conforms to the provision of the statute, and is sufficient. The appellee contends that some or all of the specific provisions of section 63-522, and section 5607, Baldwin's, must be set out in the affidavit in order to make it good as against a motion to quash, and that such a charge as contained in the affidavit violates section 13 of article 1 of the Constitution of the State of Indiana, which provides that: 'In all criminal prosecutions, the accused shall have the right to * * * demand the nature and cause of the accusation against him.'

Under section 63-523, and section 5608, Baldwin's, the first subsection provides for the general charge of practicing dentistry without a license, and each of the other subsections provides for a specific offense. Section 63-522, and section 5607, Baldwin's, defines 'practicing dentistry' within the meaning of the act, and sets out specifically the things and acts which constitute the practice of dentistry.

The appellee contends that that part of section 63-513, and section 5598, Baldwin's, heretofore set out, is unconstitutional, being in violation of section 13, article 1 of the Constitution of Indiana. This question has been passed upon by this court in the case of Melville v. State (1909) 173 Ind. 352, 89 N.E. 490, 493, 90 N.E. 467, and decided against the contention of the appellee in the instant case. In that case, there was a...