Byrd v. State

• Decision Date: 17 December 1913
• Citation: Byrd v. State, 162 S.W. 360, 72 Tex. Cr. R. 242 (Tex. Crim. App. 1913)
• Parties: BYRD v. STATE.
• Court: Texas Court of Criminal Appeals

162 S.W. 360

BYRD v. STATE.

Court of Criminal Appeals of Texas.

December 17, 1913.

Appeal from Delta County Court; J. N. Viles, Judge.

B. F. Byrd was convicted of unlawfully practicing medicine without registering his certificate, and he appeals. Affirmed.

Sturgeon & Beauchamp, of Paris, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was indicted, tried, and convicted for unlawfully practicing medicine without registering his certificate authorizing him to so practice in the office of the district clerk of Delta county, Tex., and his punishment fixed at a fine of $50 and confinement for one day in the county jail.

After the necessary formal part of the indictment, it charges that appellant on or about March 1, 1913, and before the indictment was presented, "in the county of Delta and state of Texas, did then and there unlawfully engage in the practice of medicine and offer to engage in the practice of medicine for hire upon a human being, to wit, upon Lem Freeman, without having registered in the office of the district clerk of the county of Delta and state of Texas, the said county of Delta and state of Texas being the county of residence of the said B. F. Byrd, a certificate from some authorized board of medical examiners, or a diploma from some accredited medical college, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the state." Appellant moved to quash this indictment on these grounds: (1) It is ambiguous, uncertain, and indefinite, in that it does not apprise the defendant of the offense for which he is being prosecuted in such manner as to enable him to defend therein. (2) It charges the defendant with the offense of practicing medicine, and offering to engage in the practice of medicine, without first having registered, in the office of the district clerk, a certificate from some authorized board of medical examiners, without alleging what district clerk it refers to. Since there are many district clerks in Delta county he is unapprised by the allegation what district clerk is therein referred to. It should read "without filing a certificate with the clerk of the district court of Delta county, Tex.," instead of "district clerk." (3) It charges him with the offense of practicing medicine without a certificate from some authorized board of medical examiners, or a diploma from some accredited medical college. Said allegation is disjunctive and not conjunctive, and does not apprise him whether he is being prosecuted for not filing a certificate, or for not filing a diploma, and does not apprise him of which one. (4) The act of 1907, under which he is prosecuted, is unconstitutional, indefinite, and uncertain, in that it does not describe definitely and intelligently before whom certificates or diplomas required therein shall be registered. (5) It does not allege that he at the time and prior thereto publicly professed to be a physician or surgeon, or publicly offered to be a practicing physician.

The act of the Thirtieth Legislature, approved April 17, 1907, p. 224, has so many times been held constitutional that we deem it unnecessary to further discuss its constitutionality, or cite all of the cases. But see Ex parte Collins, 57 Tex. Cr. R. 2, 121 S. W. 501; Dankworth v. State, 61 Tex. Cr. R. 157, 136 S. W. 788; Germany v. State, 62 Tex. Cr. R. 276, 137 S. W. 130, Ann. Cas. 1913C, 477; Collins v. State, 223 U. S. 288, 32 Sup. Ct. 286, 56 L. Ed. 439. It will be observed that the only ground of unconstitutionality urged is that the law does not definitely and intelligently describe before whom certificates shall be registered. The fact that the act requires the physician to register his certificate to practice medicine "in the district clerk's office of the county in which he resides," in section 4 of the act (P. C. art. 750), and that the next section or article makes it the duty "of the district clerk of each county in this state to purchase a book," etc., in which to register such license, instead of, as appellant claims, that he should be designated as "the clerk of the district court," is certainly very hypercritical, and could mislead no one, and is definite and certain in that the clerk of the district court is meant, if there is any difference between the "clerk of the district court" and the "district clerk" of a given county. Appellant's contention as to the unconstitutionality of the act on this ground, and that the indictment is fatally defective because thereof, is wholly without merit.

The article of the statute under which appellant was convicted is as follows: "It shall be unlawful for any one to practice medicine, in any of its branches, upon human beings within the limits of this state who has not registered in the district clerk's office of the county in which he resides, his authority for so practicing, as herein prescribed together with his age, postoffice address, place of birth, school of practice to which he professes to belong, subscribed, and verified by oath; which, if willfully false, shall subject the applicant to conviction and punishment for false swearing as provided by law. The fact of such oath and record shall be indorsed by the district clerk upon the certificate. The holder of the certificate must have the same recorded upon each change of residence to another county, and the absence of such record shall be prima facie evidence of the want of possession of such certificate."

As to appellant's fifth ground to quash, it will be noted that the indictment herein follows substantially, if not literally, that part of the statute defining the offense. This court has already, in effect, decided that question against appellant. Singh v. State, 146 S. W. 892. In the Singh Case is cited and quoted Antle v. State, 6 Tex. App. 202, as follows: "`As a general rule, it is sufficiently certain to describe an offense in an indictment in the language of the act creating the offense'—and again: `We are of the opinion that the information charges the offense in substantially the language of the statute which creates the offense, that it is sufficient to charge that the accused did practice medicine, and that it is not required that the particular branch or department of medicine be set out in the information; that, the indictment or information charging the practice of medicine, it would be supported by proof of engaging in the practice of medicine in any of its branches or departments, the act being otherwise unlawful.'" The decision in the Antle Case has been expressly approved, as shown by 5 Rose's Notes, p. 8, in the following cases: Benham v. State, 116 Ind. 115, 18 N. E. 454; Parks v. State, 159 Ind. 214, 64 N. E. 862, 59 L. R. A. 190; People v. Phippin, 70 Mich. 21, 37 N. W. 888; State v. Dent, 25 W. Va. 1; Eastman v. State, 109 Ind. 281, 10 N. E....