Larson v. State

• Decision Date: 10 June 1925
• Docket Number: (No. 9231.)
• Citation: Larson v. State, 285 S.W. 317, 106 Tex.Cr.R. 261 (Tex. Crim. App. 1925)
• Parties: LARSON v. STATE.
• Court: Texas Court of Criminal Appeals

285 S.W. 317

LARSON v. STATE.

(No. 9231.)

Court of Criminal Appeals of Texas.

June 10, 1925.

Appeal Reinstated October 28, 1925.

Rehearing Denied June 9, 1926.

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

S. F. Larson was convicted of violating the Medical Practice Act, and he appeals. Affirmed.

Jas. E. Rose, B. C. Johnson, and A. A. Gunter, all of Port Arthur, for appellant.

Tom Garrard, State's Atty., of Lubbock, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.

LATTIMORE, J.

From conviction in county court of Jefferson county at law of violating the Medical Practice Act (Vernon's Ann. Pen. Code 1916, arts. 750-758e), with punishment fixed at a fine of $50 and ten days in jail, this appeal is taken.

The only semblance of a recognizance appearing in the transcript is as follows:

"J. E. Rose, A. A. Gunter, W. D. McFadden entered into reconsonce with dfet. S. F. Larsen, in the sum of two hundred ($200.00) dollars, that deft will perfect his appeal in accordance with notice of same."

There is no excuse for a record being sent here in this condition. Article 919, Vernon's C. C. P., plainly prescribes the form for a recognizance on appeal in misdemeanor cases. To omit to incorporate the recognizance in the transcript on appeal requires a dismissal of the appeal. Such dismissals necessitate cost and delay. The people who select the officials also pay the costs. They should see to it that men are put in public positions who will endeavor to follow the plain forms which any man who can read can find.

Because of the defective recognizance, the appeal is dismissed.

On Motion to Reinstate Appeal.

At a former term of this court this appeal was dismissed because of a defective recognizance. Appellant asks for a rehearing, and accompanies his request by a certified copy of a legal recognizance entered into by him, appealing this case. The appeal will be reinstated and the case discussed on its merits.

Appellant testified in his own behalf on the trial that he did not practice medicine nor hold himself out as a practitioner thereof, but said he was an electrical therapeutic, and admitted that as such he treated people afflicted with bodily ills, and charged them for his services in such regard. He said he was a graduate of the Pennsylvania College of Optics and of the Des Moines School of Orificial Surgery, but admitted that he had never been examined by the state board of medical examiners of Texas, and, further, that he had never filed with the district clerk of Jefferson county any license or certificate issued by said board.

That appellant was a practitioner of medicine under our laws as construed by the opinions of this court seems clear. Article 755, Vernon's P. C.; Collins v. State, 57 Tex. Cr. R. 2, 121 S. W. 501; Collins v. State, 223 U. S. 288, 32 S. Ct. 286, 56 L. Ed. 439; Milling v. State, 67 Tex. Cr. R. 551, 150 S. W. 434; Lewis v. State, 69 Tex. Cr. R. 593, 155 S. W. 523; Singh v. State, 66 Tex. Cr. R. 156, 146 S. W. 891; Hicks v. State, 88 Tex. Cr. R. 438, 227 S. W. 302; Black v. State, 86 Tex. Cr. R. 254, 216 S. W. 181.

As such practitioner, he is required, by the terms of article 750, Vernon's P. C., to register with the district clerk a certificate issued to him by the state board of medical examiners. This he has not done, and was therefore penally liable for such failure, unless we respond to his contention that the law under which he was convicted is unconstitutional. This we cannot do. If we understand appellant's contention, his attack is based on the proposition that article 753, Vernon's P. C., defining what is meant by a bona fide reputable medical school, and stating that same is one "whose entrance requirements and courses of instruction are as high as those adopted by the better class of medical schools of the United States, whose course of instruction shall embrace not less than four terms of five months each," is indefinite, uncertain, and also arbitrary. We are not able to say that this sets up an arbitrary discrimination between schools, or that it is a character of classification which the Legislature cannot make. We see nothing in Smith v. Texas, 233 U. S. 630, 34 S. Ct. 681, 58 L. Ed. 1129, L. R. A. 1915D, 677, Ann. Cas. 1915D, 420 contrary to this view. The right of free contract was there involved, and the Supreme Court of the United States said same could not be abridged by an act of the Legislature forbidding the employment of one as a passenger conductor until he had served as a freight conductor or brakeman for two years. The distinction between the statute here involved and the one thus held unconstitutional by our Supreme Court seems obvious. The constitutionality of the act under consideration has been attacked in many cases, and as often sustained. Authorities cited under article 750, Vernon's P. C. We see no reason for writing further on the subject.

There are a number of bills of exception, many of which complain of the rejection of proof that appellant benefited persons by his treatment. Such evidence could in no wise militate against the question of guilt herein. Nor would proof of the fact that he had filed a diploma with the district clerk affect the question of his guilt when charged with failing to file a certificate issued by the state board of medical examiners of this state.

Bill of exceptions No. 5 presents no error as qualified by the court in a statement to the effect that appellant was offering the same character of testimony regarding his beneficial treatment of patients, and that the court indicated that he would hold such further proof unnecessary and inadmissible.

Bills of exception No. 6 to No. 21, inclusive, present the action of appellant in selecting each ground of the motion for new trial and incorporating same into a bill of exceptions which he has filed. We know of no such rule of practice. The motion for new trial merely complained of the rulings of the court and the incorrectness of his judgment, and evidences no matters of newly discovered evidence, misconduct of the jury, or other matters not pertaining to the regular trial of the case. None of the bills manifest any error. There was a special charge, but on same there is no notation of whether it was refused or given, or when same was presented, nor is there a bill of exceptions regarding it.

The record being devoid of any showing of error, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant contends that his position in claiming the law under which he was convicted to be unconstitutional was misunderstood by this court, and not discussed.

Article 4501 (R. C. S. 1925) provides:

"All applicants for license to practice medicine in this state, not otherwise licensed under the provisions, of law, must successfully pass an examination before the board of medical examiners established by this law. Applicants, to be eligible for examination, must present satisfactory evidence to the board that they are more than twenty-one years of age, of good moral character, and graduates of bona fide, reputable medical schools. Such school shall be considered reputable within the meaning of this law, whose entrance requirements and course of instruction are as high as those adopted by the better class of medical schools of the United States, whose course of instruction shall embrace not less than four terms of eight months each."

The gravamen of appellant's complaint is against that provision which requires an applicant to be a graduate, that is, hold a diploma, from a reputable medical school before being eligible for examination, it being contended that this is discriminatory against one who might be qualified to stand any examination required, although not holding a diploma, and is therefore, in conflict with article 14, § 1, of the Constitution of the United States, and article 1, § 3, of the Constitution of this state.

The Supreme Court of the United States in Dent v. State of West Virginia, 129 U. S. 114, 9 S. Ct. 231, 32 L. Ed. 623, clearly recognizes the right of the state to fix an educational qualification on one seeking to practice medicine. We quote from that opinion as follows:

"The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of...