Hicks v. State, (No. 5991.)

• Decision Date: 01 December 1920
• Docket Number: (No. 5991.)
• Citation: 227 S.W. 302
• Parties: HICKS v. STATE.
• Court: Texas Court of Criminal Appeals

227 S.W. 302

HICKS v. STATE.

(No. 5991.)

Court of Criminal Appeals of Texas.

December 1, 1920.

Rehearing Denied February 2, 1921.

Appeal from Anderson County Court; Mills Q. Reeves, Judge.

D. M. Hicks was convicted of unlawfully engaging in the practice of medicine, and he appeals. Affirmed.

A. G. Greenwood and A. M. Barton, both of Palestine, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the county court of Anderson county of unlawfully engaging in the practice of medicine, and his punishment fixed at a fine of $50 and one hour in the county jail.

Our statutes (chapter 6, tit. 12, Vernon's Penal Code) contain many provisions governing and defining the unlawful practice of medicine in this state, and since the passage of the law of 1907, there have been many cases in the courts in which men who practiced the healing art in various ways have made known their objections to certain provisions of this law, and have called in question the constitutionality of the same. In the instant case, appellant was shown to be a chiropractor, operating in Palestine, Anderson county; and, not having registered with the district clerk of said county, either a certificate of some authorized board of medical examiners, or a verification certificate, such as is required by the terms of said chapter, he was indicted and convicted, as stated. Upon his trial, he attacked the sufficiency of the indictment by motion to quash, the first ground of which was that said indictment, in addition to the allegations of failure to file the certificates above mentioned, should have stated that appellant did not register his age, post office address, place of birth, or school of practice to which he professes to belong, with said clerk. An inspection of article 750 of our Penal Code discloses that one who desires to legally practice medicine in this state must first register with the district clerk of the county of his residence the document evidencing his authority to so practice, which document is either a verification certificate, such as is provided in article 752, P. C., or a certificate from a board of medical examiners, such as is provided in article 753, P. C.; and, in addition to such certificate, he must also give under oath his age, post office address, place of birth, etc.

Appellant was not charged in this case with failing to record with the district clerk these latter facts under oath, but only with having failed to register a proper certificate. It seems clear that, even though some character of document under oath setting out the age, address, place of birth, etc., of appellant had been filed with said clerk, this would not have met the demands of the law, and that in such case, if one who had filed such statement attempted to practice medicine without registering the required certificate, he would be held guilty of violating the law. It follows that we are of opinion that failure to file such certificate would be of itself a violation of the law, whether the remainder of the requirements with regard to age, birth, etc., were complied with or not, and that an allegation of failure to file such certificate as a condition precedent to the practice of medicine would be sufficient. We do not find anything in Young v. State, 74 Tex. Cr. R. 133, 167 S. W. 1112, cited by appellant which holds to the contrary. Said opinion merely concludes that it must be alleged that the necessary papers were filed with the district clerk of the county of the practitioner's residence. In said opinion, Lockhart v. State, 58 Tex. Cr. R. 73, 124 S. W. 923, and Marshall v. State, 56 Tex. Cr. R. 205, 119 S. W. 310, are cited as supporting authorities, and each of them is a decision wholly on the point that such papers must be filed in the county of residence.

In Byrd v. State, 72 Tex. Cr. R. 242, 162 S. W. 360, the same learned judge who wrote in the Young Case, supra, upheld an indictment identical in legal effect and terms with that now before us.

A second ground of said motion to quash is based on the proposition that article 5741 of our Civil Code and article 5742 thereof conflict with each other, in that the former prescribes certain subjects upon which every applicant for license to practice medicine must stand an examination, while the latter specifically provides that nothing in this law—referring to the law of medical examination—shall discriminate against any school or system of medical practice. Neither the trial court, nor this court, is informed by this motion wherein the said conflict arises. The mere statement that there is a conflict, or that the terms of one article are contradictory of another, presents nothing demanding favorable judgment, unless there be something in the language or construction in one of said articles which is in fact in conflict with the other. The only matter before the trial court, in passing on this motion, or before this court in reviewing such action, was and is whether in article 5741 anything appears which is in conflict with article 5742. The respective articles are as follows:

"Art. 5741: All examinations shall be conducted in writing, and in such manner as shall be entirely fair and impartial to all individuals and every school of medicine, the applicants being known by numbers, without names or other method of identification on examination papers by which members of the board may be able to identify such papers, until after the applicants have been granted licenses or rejected. Examinations shall be conducted on the scientific branches of medicine only, and shall include anatomy, physiology, chemistry, histology, pathology, bacteriology, physical diagnosis, surgery, obstetrics, gynecology, hygiene, and medical jurisprudence. Upon satisfactory examination under the rules of the board, applicants shall be granted licenses to practice medicine. All questions and answers, with grades attached, shall be preserved for one year. All applicants examined at the same time shall be given identical questions in each of the above branches. All certificates shall be attested by the seal and signed by all members of the board, or a quorum thereof."

"Art. 5742: Nothing in this law shall be so construed as to discriminate against any particular school or system of medical practice. This law shall not apply to dentists legally qualified and registered under the laws of this state who confine their practice strictly to dentistry; nor to nurses who practice only nursing, nor to masseurs, in their particular sphere of labor, who publicly represent themselves as such; nor to commissioned or contract surgeons of the United States army, navy or public health and marine hospital service, in the performance of their duties, but such shall not engage in private practice without license...