Milling v. State

• Decision Date: 16 October 1912
• Citation: 150 S.W. 434
• Parties: MILLING v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W. 434

MILLING v. STATE.

Court of Criminal Appeals of Texas.

October 16, 1912.

Appeal from Stephens County Court; N. N. Rosenquest, Judge.

R. G. Milling was convicted of unlawfully practicing medicine, and he appeals. Affirmed.

A. A. Clarke, of Albany, and W. P. Sebastian, of Breckenridge, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted and convicted for unlawfully practicing medicine. His penalty was fixed at $50 fine and 20 minutes in jail.

The indictment, in substance and in effect, alleges that on or about November, 10, 1910, appellant, who was then a resident of Stephens county, Tex., did practice in said county upon human beings without authority of law, in that he did unlawfully treat a physical disease and disorder of R. L. McFall, and charged him indirectly therefor $2, said treatment being given in the capacity of a physician or doctor, or both, under a system of treatment the name of which is unknown to the grand jury, which treatment consists and did then consist in performing certain physical manipulations with his hands over said McFall, without having first registered in the district clerk's office of said county his authority from the board of medical examiners for so practicing, together with his age, post office address, place of birth, and school of practice to which he belonged, subscribed and sworn to as required by law, in violation of the provisions of Acts 30th Leg. c. 123.

Appellant made a motion to quash this indictment on several grounds—one to the effect that the allegations simply amounted to a charge that the defendant treated said McFall as a masseur, and that masseurs were exempt from said law, and that because the subjects prescribed for applicants to practice are such as to exclude, or not authorize masseurs to be examined and get a license. In our opinion the indictment charges on this point the reverse of what appellant contends, in that it charges clearly that appellant practiced as a doctor or physician on human beings and unlawfully treated a disease and disorder of McFall. This court in a well-considered opinion has expressly held that a masseur, where he wants to practice, can obtain a license from the state medical board, but, in order to do so, he must stand an examination in the subjects prescribed by the law. Germany v. State, 62 Tex. Cr. R. 279, 137 S. W. 130. It was not necessary for the indictment, as claimed by appellant, to allege that the treatment appellant practiced was not within the particular sphere of his labors as a masseur, and to negative that he did not publicly represent himself as a masseur. Newman v. State, 58 Tex. Cr. R. 223, 124 S. W. 956. Under the facts of this case, it was proper for the court in its charge to the jury to quote the second clause of P. C. art. 755, which was section 13 of the said act. Appellant's complaint is that the second clause of said article should not have been quoted, because the prosecution is based on the first, and not on the second, clause. The reverse of his contention is the fact as shown by the indictment.

The issue in this case was sharply, correctly, and accurately drawn. The state alleged and proved that the appellant practiced upon human beings and treated them for disease and disorder as a doctor or physician and charged indirectly therefor without procuring and having registered a license therefor. The appellant claimed that he did not so practice, but that he practiced simply and solely as a masseur, so advertising himself. The court, both in the main charge and in the charges given at appellant's instance and the state's, clearly drew this distinction, and the jury found, as they were clearly authorized by the evidence, that the appellant was practicing as alleged, not as a masseur, but as a doctor or physician.

It was entirely proper, therefore, for the court to charge, as it did, that masseurs in their particular sphere of labor who publicly represent themselves as such are exempt from the law requiring a certificate of their authority to be recorded before practicing that art, but that if, notwithstanding he so represents himself as a masseur, he undertakes to cure diseases for pay, and represents himself as able to cure diseases in that manner, he could not do so legally without the proper certificate...