Kellogg v. State

• Decision Date: 26 January 1910
• Parties: KELLOGG v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 958

KELLOGG v. STATE.

Court of Criminal Appeals of Texas.

January 26, 1910.

Appeal from Bell County Court; W. S. Shipp, Judge.

S. Kellogg was convicted of practicing medicine without a license, and appeals. Reversed and remanded.

John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

Most of the material questions raised on this appeal have been decided adversely to appellant in the cases of Ex parte Collins, 121 S. W. 501, and Newman v. State (recently decided) 124 S. W. 956.

It appears from the evidence, in a general way, that appellant resided in Bell county, and was, in the legal sense of that term, a resident of such county, though the evidence of some of the witnesses leaves this fact in doubt. Among others, T. M. Harris testified as follows: "I saw him in Killeen frequently, and he was staying there while he gave me the treatments. He had formerly lived over in Coryell county, and my impression is that his family was staying there, and that he had moved his family to Killeen since last spring. He had been boarding in Killeen at Mr. Sprott's for over a year, and kept his office at his house." Another witness, W. A. Stafford, testified as follows: "The defendant had an office at the residence of Mr. H. L. Sprotts, in Killeen, Bell county, Tex., at the time he gave me the treatment, and he has been living there in Killeen for about one year." In this connection it should be stated that appellant was charged with practicing medicine without license during May of 1909. Another witness, Dr. Wood, testified that he had known appellant since before the 17th day of May, 1909, and that he had been living in Bell county for about two years.

It is made to appear by bill of exceptions that after the case had been closed, and after the jury had received the charge of the court, and had retired from the courtroom, and had considered of their verdict for some time, they came in open court, and presented to the court the following question in writing, to wit: "Judge W. S. Shipp: We would ask the law, or an opinion, on what it takes to constitute a resident of a county. J. E. Sparks, Foreman." To which question the court made answer in writing, and delivered the same to the jury, as follows: "The uncontradicted testimony in this case is that the defendant in this case was and is a citizen of Bell county, Tex." To which action of the court appellant then and there excepted on the ground that said instruction was on the weight of the...