Barrett v. State

• Decision Date: 06 June 1928
• Docket Number: (No. 11738.)
• Citation: Barrett v. State, 8 S.W.2d 133, 110 Tex.Cr.R. 258 (Tex. Crim. App. 1928)
• Parties: BARRETT v. STATE.
• Court: Texas Court of Criminal Appeals

8 S.W.2d 133

BARRETT v.STATE.

(No. 11738.)

Court of Criminal Appeals of Texas.

June 6, 1928.

Appeal from San Saba County Court; W. V. Dean, Judge.

D. D. Barrett was convicted of unlawfully practicing medicine, and he appeals.Reversed, and remanded for new trial.

A. G. Mueller, of Llano, and N. C. Walker, of San Saba, for appellant.

Black & Graves, Robert M. Turpin, and A. A. Dawson, State's Atty., all of Austin, for the State.

HAWKINS, J.

Conviction is for unlawfully practicing medicine.Punishment is by fine of $100 and imprisonment in the county jail for 24 hours.

Conviction was under the first count of an indictment which averred that appellant practiced medicine and treated one Ben Lewis in San Saba county, in which county it was averred appellant resided, without having registered in the district clerk's office of said county the authority of appellant to so practice.

Appellant contends that this conviction cannot stand, (1) because the evidence fails to show that the offense, if any, occurred in San Saba county; and (2) because the evidence fails to show that appellant resided in said county.

Article 847, C. C. P., provides that this court shall "presume that the venue was proven in the court below * * * unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions approved by" the trial judge.

The issue was raised in the trial court by a motion for an instructed verdict, one ground of which was that the state had failed to prove venue, and the point is properly before us by a bill of exception certified by the trial judge as containing all the evidence upon the issue.Article 739, P. C., makes it necessary for one to practice medicine lawfully to have registered in the district clerk's office in the county in which such practitioner resides his authority to so practice.The state alleged that appellant resided in San Saba county.Such averment was necessary.It was also indispensable that the state support such allegation by proof.Lockhart v. State, 58 Tex. Cr. R. 80, 124 S. W. 923;Marshall v. State, 56 Tex. Cr. R. 205, 119 S. W. 310;Young v. State, 74 Tex. Cr. R. 133, 167 S. W. 1112;Hicks v. State, 88 Tex. Cr. R. 438, 227 S. W. 302;Less v. State, 93 Tex. Cr. R. 155, 246 S. W. 382.

The only evidence found in the bill of exception — or, for that matter, in the entire statement of facts — touching the residence of appellant or that the offense was committed in San...