# Estep v. State

> Tennessee Supreme Court · January 5, 1946 · 183 Tenn. 325

URL: https://www.frixlaw.com/law-library/cases/9868400

## Case

- **Full name:** Estep v. State.
- **Court:** Tennessee Supreme Court
- **Decided:** January 5, 1946
- **Citations:** 183 Tenn. 325; 19 Beeler 325; 192 S.W.2d 706; 1946 Tenn. LEXIS 212
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Gailor
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9868400

## Opinion text

On iPetition to Rehear.
Petition to rehear has been filed by the defendant, whose conviction was affirmed by an opinion rendered by this Court on January 5,1946. The lawyers who file the petition to rehear did not represent the defendant at the original trial, nor on the original appeal; indeed, they are the third team of legal advisers who have appeared for the defendant since his arrest. The first ground upon which a rehearing is sought is that this Court pretermitted a decision of the defendant’s fourth assignment of error in his original appeal. The gist of this assignment was that the trial judge had committed error in refusing a special request presented by the defendant by which the trial jndge would have charged the jury that the punish *341 ment to be imposed was fixed by Chapter 49 of the Public Acts of 1943. In our original opinion we took pains to point out that the only penalty fixed by that statute was for the unlicensed practice of naturopathy, and that the defendant here was not indicted nor charged with the commission of that offense, since it was admitted that he was a licensed naturopathic physician. The special request presented by defendant and refused by the trial judge, is the following:
“Gentlemen of the Jury,'the punishment for the offense for which the defendant is indicted is not a maximum fine of $1000.00' and/or a maximum term of imprisonment of eleven months and twenty-nine days. The penalty provided by the Act under which the Defendant is indicted is a fine of not less than $50.00 and not more than $100.00 and imprisonment in the County Jail or Workhouse of not less than thirty days nor more than six months or both fine and imprisonment in the discretion of the Court. ’ ’
The defendant was not charged with the unlicensed practice of naturopathy but he was charged with the unlawful administration of a toxic drug in violation of the prohibition contained in Chapter 43 of the Public Acts of 1945.
Present counsel for the defendant are under a disadvantage since the fact that the penalties prescribed in the act of 1943 were not applicable to the present offense, was expressly admitted by former counsel representing the defendant, both at the bar of this Court and in the printed briefs filed on the original appeal. Formal admission that the penalties prescribed by the Act of 1943 as amended by the Act of 1945, were not applicable to the offense charged, occur in the printed brief originally filed at pages 20, 32, and in the printed reply brief, pages 5 and 6. We think present counsel are *342 clearly bound by tbe admission of their predecessors. If such was not the case, there would be no end to litigation. The effect of the admission that the penalties prescribed by the two statutes of 1943 and 1945 were not applicable, is to admit that the special request set out in assignment of error No. 4, was not applicable or relevant to the issues and was, therefore, properly refused by the trial judge. The insistence of counsel who represented the defendant on the original appeal was that if the defendant was guilty of any offense, he was* guilty of unlawfully practicing medicine without a license. We think it is too late now for new counsel to change that position and insist that if defendant was guilty of any offense he was guilty of violating the statute of 1943, and so of his license to practice naturopathy.
The second ground laid in the petition to rehear is that the indictment was void and insufficient. We find this consists of re-argument merely, and so does not justify rehearing under Rule 32, 173 Tenn. 886 , 887; Louisville & N. Railroad Co. v. United States Fidelity & Guaranty Co., 125 Tenn. 658, 691-693 , 148 S. W. 671 ; Andrews et al. v. Crenshaw et al., 51 Tenn. 151, 152, 153 . We fully considered and upheld the sufficiency of the, indictment in our former opinion.
For the reasons stated the petition to rehear will be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9868400. Public record. Not legal advice.