Blumberg v. State

• Decision Date: 22 April 1942
• Docket Number: No. 22039.,22039.
• Citation: 161 S.W.2d 1082
• Parties: BLUMBERG v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1082

161 S.W.2d 1082

BLUMBERG v. STATE.

No. 22039.

Court of Criminal Appeals of Texas.

April 22, 1942.

Rehearing Denied May 27, 1942.

Commissioners' Decision.

Appeal from County Court at Law, Jefferson County; C. N. Ellis, Judge.

Kenneth A. Blumberg was convicted of practicing optometry without having first registered the license to practice as required by law, and he appeals.

Judgment reversed and prosecution ordered dismissed.

Jack M. Moore, of Beaumont, for appellant.

Melvin Combs, Criminal Dist. Atty., and Jep S. Fuller, Asst. Crim. Dist. Atty., both of Beaumont, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

This is a conviction for practicing optometry without having first registered, as required by law, the license to so practice; the punishment, a fine of $250.

Optometry and its practice in this state is defined and regulated in both our civil and criminal statutes. The civil features are embraced in Chapter 10, being Arts. 4552-4566, R.C.S., Vernon's Ann.Civ. St. Arts. 4552-4566, while the criminal features appear in Chapter 5, being Arts. 735-738, P.C., Vernon's Ann.P.C. Arts. 735-738. It may be said that the criminal statutes are divided into three primary subdivisions: (a) defining optometry; (b) requiring, as a condition precedent to the practice thereof, a license and registration; and (c) providing a penalty for the practice without license or registration. That such statutes are valid, as being a proper exercise by the Legislature of its police power, is deemed no longer an open question in this state. Baker v. State, 91 Tex.Cr.R. 521, 240 S.W. 924, 22 A.L.R. 1163; Robertus v. State, 119 Tex.Cr.R. 370, 45 S.W.2d 595; Allison v. State, 127 Tex.Cr.R. 322, 76 S.W.2d 527; McNaughton v. Johnson, 242 U.S. 344, 37 S.Ct. 178, 61 L.Ed. 352, Ann.Cas. 1917B, 801. Appellant's contrary contention is therefore overruled.

This prosecution arose under Art. 735, P.C., which reads as follows: "The practice of optometry is defined to be the employment of objective or subjective means, without the use of drugs, for the purpose of ascertaining and measuring the powers of vision of the human eye, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision. Nothing herein shall be construed to permit optometrists to treat the eyes for any defect whatsoever in any manner nor to administer or prescribe any drug or physical treatment whatsoever, unless such optometrist is a regular licensed physician or surgeon under the laws of this State. No person shall begin to practice optometry within this State who has not registered in the county clerk's office of the county in which he resides, and in each county in which he practices, his license for so practicing, together with his age, post-office address, place of birth, subscribed and verified by his oath. The fact of such oath and record shall be indorsed by the county clerk upon the license. The absence of record of such license in the county clerk's office shall be prima facie evidence of the lack of possession of such license."

The information upon which the conviction in the instant case was predicated contained two counts. The charging part of the first count reads as follows: "On or about the 16th day of November, 1940, in said County of Jefferson and State of Texas, Kenneth A. Blumberg did then and there unlawfully practice, offer and hold himself out as authorized to practice optometry, to-wit: the practice of ascertaining and measuring the powers of vision of the human eye, and of fitting lenses and prisms to correct and remedy defects and abnormal conditions of vision in the human eye, by employment of objective and subjective means, without the use of drugs, for pay, without theretofore having registered in the Office of the County Clerk of said Jefferson County, Texas, said County being then and there the County of his residence, his license for so practicing, together with his age, postoffice address, and place of birth, subscribed and verified by the oath of him, the said Kenneth A. Blumberg".

The second count was the same as the first, except it was therein charged that the license to practice had not been registered in Jefferson County, where it was alleged the appellant did so practice, offer and hold himself out as authorized to practice optometry.

By motion to quash appellant attacked the sufficiency of the information because of its failure to negative the existence of certain exceptions exempting individuals from the operation of the statute, as provided in the civil statutes, and especially by Art. 4566, R.C.S. The exceptions mentioned are no part of and are not contained in Art. 735, P.C. The rule governing, when exceptions to the operation of a criminal statute must be negatived in the State's pleading, is stated in Baker v. State, 132 Tex.Cr.R. 527, 106 S.W.2d 308, 311, as follows:

"From what we have said above, and as far as we have been able to ascertain, our courts have uniformly held that when the Legislature sees fit to create exceptions to the general penal provisions of a statute, if such exceptions be placed in a separate section or article from the one containing the definition of the offense, or if they be not such as to be essential to the definition of the offense, it will not be necessary to negative such exceptions in the indictment charging such offense."

In the instant case, the exceptions to the operation of the statute...