Fleming v. State, 31023

• Decision Date: 25 November 1959
• Docket Number: No. 31023,31023
• Citation: 330 S.W.2d 457,168 Tex.Crim. 595
• Parties: H. L. FLEMING, Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 457

330 S.W.2d 457

168 Tex.Crim. 595

H. L. FLEMING, Jr., Appellant, v. STATE of Texas, Appellee.

No. 31023.

Court of Criminal Appeals of Texas.

Nov. 25, 1959.

Porter, Madalinski & Mondin, by Wm. M. Porter, San Antonio, for appellant.

Charles J. Lieck, Jr., Dist. Atty., Harry A. Nass, Jr., Asst. Dist. Atty., San Antonio and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for unlawfully practicing medicine.

The complaint and information contained two counts and were drawn under Arts. 741 and 742, Vernon's Ann.P.C.

Count 1 alleged in part that on or about the 1st day of July, 1957, in Bexar County, Texas, the appellant did unlawfully practice medicine upon Mrs. George White by publicly professing to be a physician and diagnosing, treating and offering to treat a disease and disorder and to effect a cure thereof for the said Mrs. White without having registered in the District Clerk's office of said County a certificate evidencing his right to practice medicine as issued to him by the Texas State Board of Medical Examiners, etc.

Count 2 alleged in part that on or about the said date of July 1, 1957, the appellant did in the said county and State unlawfully practice medicine upon Mrs. George White by diagnosing, treating and offering to treat a disease and disorder and to effect a cure thereof for the said Mrs. White and charging therefor without having registered in the District Clerk's office of said County a certificate evidencing his right to practice medicine as issued to him by the Texas State Board of Medical Examiners, etc.

The allegations of the information substantially follow the language of the Statute, Art. 741, supra, and are sufficient to charge the offense of unlawfully practicing medicine. Ehrke v. State, 134 Tex.Cr.R. 222, 115 S.W.2d 631 and De Hay v. State, 158 Tex.Cr.R. 262, 254 S.W.2d 513.

Both counts were submitted to the jury and in their verdict the jury found the appellant guilty on each count and assessed his punishment under each count at 10 days in jail and a fine of $150.

Upon the jury's verdict judgment was rendered by the court adjudging appellant guilty of the offense of unlawfully practicing medicine as found by the jury and assessing his punishment at 10 days in jail and a fine of $150 upon each count of the information.

Appellant insists that his conviction upon both counts of the information cannot be sustained because he is being assessed double punishment for the same offense. He also challenges the sufficiency of the evidence to support the conviction under count No. 1 of the information.

Briefly the State's evidence shows that on or about July 1, 1957 the prosecuting witness, Mrs. George White, went to the appellant's drug store in company with her husband for the purpose of seeing a Doctor. Mrs. White testified that when she arrived she asked to see a Doctor and after waiting sometime she was admitted into a back room where the appellant examined her by listening to her chest, told her she had pneumonia, gave her a 'shot' in the arm and some other medicine for which her husband paid $5 plus an additional amount for the medicine. Mrs. White stated that she thereafter saw the appellant seven or eight times and on each occasion appellant gave her a 'shot' and that her husband paid appellant $5 for each visit. She further stated that she went to the appellant upon recommendation of a friend who referred to the appellant as a doctor.

It was shown that appellant did not have a certificate registered in the District Clerk's office...