Allison v. State, 16756.

• Decision Date: 03 October 1934
• Docket Number: No. 16756.,16756.
• Parties: ALLISON v. STATE.
• Court: Texas Court of Criminal Appeals

76 S.W.2d 527

ALLISON v. STATE.

No. 16756.

Court of Criminal Appeals of Texas.

October 3, 1934.

Rehearing Denied November 28, 1934.

Appeal from County Court at Law, No. 1, Tarrant County; David McGee, Judge.

H. C. Allison was convicted of violating the medical practice act, and he appeals.

Affirmed.

Clarence E. Farmer, of Fort Worth, for appellant.

Jesse E. Martin, Cr. Dist. Atty., Cecil C. Rotsch and Homer B. Green, Asst. Cr. Dist. Attys., all of Fort Worth, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for violating the Medical Practice Act (Pen. Code, art. 741); punishment, a fine of $50 and thirty minutes confinement in the county jail.

We see nothing in the provisions of chapter 28, Acts Regular Session, 37th Legislature (1921), creating the county court at law No. one for Tarrant county, violative of any provision of our Constitution. The law creating said court is and was not a local or special law, such as is forbidden by the terms of section 56, art. 3, of our Constitution. While it is true of this, as of all courts, that the law creating same necessarily fixes territorial limits to its jurisdiction, the fact that such territorial limit is one or a number of counties, in no way operates to deprive such law of its character as a general law. See Allen v. State, 122 Tex. Cr. R. 186, 54 S.W. (2d) 810; Whitehead v. Granbury Independent School District (Tex. Civ. App.) 45 S.W. (2d) 421. Nor was there error in the court's refusal to hear testimony of three witnesses tendered by appellant in support of his plea that the law creating said court was a local or special law. We fail to see anything in our opinion in Jaurez v. State, 102 Tex. Cr. R. 297, 277 S. W. 1091, which has any application to the state of facts appearing in this case. Unless on its face such plea presents a provable proposition, it would manifestly not be error to refuse to hear testimony in support thereof. The plea in the Jaurez Case, supra, was that the accused was intentionally discriminated against in the formation of the jury commission, and subsequently in the formation of a grand jury, a plea which to be good had to be sustained by proof. Manifestly, a plea that a law passed by the Legislature is or was a local law does not present a similar question.

We have examined with interest appellant's lengthy plea which he denominates his special plea of fundamental constitutional ground in bar of this prosecution. Same seems to us to raise and present only matters and things proper for the consideration of the Legislature in order that they may determine whether or not the laws which they have enacted or should enact be just and wise and to properly limit and define the scope of the necessary qualifications of one who seeks to practice medicine; also those things which must be made to appear before one applying for license to so practice brings himself within the prescription of the practice act. This court has nothing to do with the wisdom or propriety of acts of the Legislature in cases where parties convicted for penal violations appeal to this court for review.

The constitutionality of the statute under which appellant was convicted has often been affirmed, and the effort of appellant in varying and diverse verbiage to raise said issue presents no new question. Nothing in said plea made necessary or proper that same should be heard by a jury.

Appellant's bill of exceptions No. 11 sets out at length proposed testimony of Dr. Reeves as to his reasons for his refusal, as a member of the state board of medical examiners in 1929, to allow appellant to take an examination before said board for license to practice medicine; also as to his understanding of the rules and reasons then controlling said board in its action, same being offered in support of appellant's plea of fundamental constitutional rights. We see no proper place for such testimony in a case like this, and think the objection to same properly sustained.

Appellant objected to the testimony of Mrs. Estill as to medical treatment of her by him upon other days and dates than the particular day mentioned in the information. We see no impropriety in permitting the state to prove medical treatment of her upon other days and dates at or about the time alleged, the purpose of the prosecution being to show that he practiced medicine without license.

While article 642, C. C. P., gives to each side in a criminal case the right to state to the jury in the beginning the nature of the accusation or defense, and the facts relied on in support thereof, this does not entitle appellant's counsel to state facts which he intends to offer in support of a written plea setting up a matter of law relied upon as a defense. There would appear nothing in the proposition of his intent to present such plea which would justify the statement of the evidence that he intended to offer in support of it. Such evidence would not appear to be admissible.

A bill of exceptions complaining that the court refused a request for a peremptory instruction to acquit, unless accompanied by some agreed statement of facts or approved statement of the facts already before the jury as being true, and all the facts then before the jury, would appear to avail appellant nothing. The rejected testimony of appellant himself, offered in support of his plea of fundamental constitutional rights, that he regarded chiropractic schools as reputable, and that since he was a graduate of same he was discriminated against by the state medical board in refusing to permit him to take the examination, seems to us to support no...