Stone v. State

• Decision Date: 12 April 1905
• Citation: 86 S.W. 1029
• Parties: STONE v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

86 S.W. 1029

STONE v. STATE.^*

Court of Criminal Appeals of Texas.

April 12, 1905.

Appeal from Jackson County Court; F. M. Austin, Judge.

W. W. Stone was convicted of practicing medicine without a license, and appeals. Affirmed.

Guy Mitchell and Robt. B. Seay, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was fined $50 under an indictment charging a violation of the provisions of the act of the Twenty-Seventh Legislature (page 12, c. 12) with reference to the practice of medicine, and which is substantially as follows: That W. W. Stone on or about February 12, 1903, "in the county of Jackson and state of Texas, did then and there profess publicly to be a physician, offer for practice as such for those needing medicine, and charge therefor money and other compensation, and that said W. W. Stone did then and there, unlawfully, and not being a practitioner of midwifery licensed by the State Medical Board of the state of Texas, practice medicine for pay as such practitioner of medicine, and as such practitioner did visit and prescribe medicine and drugs for Mrs. F. Lopez on said date, and in said county and state, without first obtaining and having recorded in the office of the district clerk of said county a certificate from any legally authorized board of medical examiners of the state of Texas entitling and licensing the said W. W. Stone to practice medicine in said state, and without having practiced medicine in the state of Texas prior to January 1, A. D. 1885, and without having obtained and filed for record in the office of the district clerk of said county a certificate entitling the said W. W. Stone to practice medicine under the laws in force up to the date of the passing of the acts included in title 82 of the Acts of the Twenty-Seventh Legislature, and without having had recorded since the first day of January, A. D. 1891, a doctor's diploma, and furnishing to either of the boards of medical examiners, as provided for in title 82 of the Acts of the Twenty-Seventh Legislature aforesaid, satisfactory evidence that his diploma was issued by a bona fide medical college of respectable standing, and thereby obtaining a certificate and filing same for record in the office of the district clerk of said county, said W. W. Stone then and there not being a commissioned officer or contract surgeon of the United States army, navy, or marine hospital service in the performance of his duty as such, nor a legally qualified and registered dentist under the laws of the state of Texas, nor a lawfully qualified physician or surgeon residing in another state or territory meeting a registered physician or physicians, surgeon or surgeons, of this state, in consultation, against the peace and dignity of the state."

Appellant filed the following motion in arrest of judgment: "* * * Because the information herein charges no offense known to the laws of Texas, in this: (1) The act of the Twenty-Seventh Legislature, p. 12, c. 12, tit. 82, under which the information herein is presented, is violative of and repugnant to article 16, § 31, of the Constitution of this state, in that said act gives preference to the allopathic, homeopathic, and eclectic schools of medicine, to the exclusion of all other schools, however well recognized and respectable. (2) The said act is unconstitutional, in that it wrongfully vests judicial powers in the boards of medical examiners, without constituting or attempting to constitute them courts of law or equity. (3) The said act, and particularly the second exception, in section 8 thereof, is, and has the effect of, a retroactive law, prohibited by article 1, § 16, of the Constitution. (4) The said act is so vague, indefinite, uncertain, and contradictory that it cannot be enforced, in that it (the said act) authorizes the issuance of a certificate by either of the three boards established, and at the same time (section 8, exception 2) requires the action of the boards of medical examiners (all three) in granting such certificates. (5) The said act by its terms establishes no legal rule or measure whereby the guilt or innocence of a defendant may be determined, but makes the guilt or innocence of a defendant depend entirely upon the opinions of physicians of different schools of medicine. (6) The said entire act is unconstitutional and void, for that it is class legislation, and discriminates in favor of persons belonging to certain schools of medicine therein named, and against persons belonging to other and different schools."

The statement of facts shows: That appellant "holds a diploma from the Independent Medical College of Chicago, Illinois, chartered under the laws of the state of Illinois, which said institution is under the management of the Physio-Medical School of Medicine, which said school has a national and state organization, with a college in Dallas, chartered under the laws of this state, and is a well-recognized school of medicine. Said diploma from said college is regular in form, and bears date the 15th day of June, 1898, and was filed and registered according to law in the office of the district clerk of Wise county, Tex., on the 31st day of January, 1901. That defendant, prior to alleged commission of the offense charged, on December 23, 1902, again filed his said diploma for record in Jackson county, Tex., in all things as required by law, and thereafter, before attempting to practice his profession in this county, presented said diploma to the State Board of Medical Examiners appointed by the Governor of Texas under the act of the Twenty-Seventh Legislature (page 12, c. 12, tit. 82), for the purpose of procuring and receiving a certificate—the said diploma accompanied by proof that said Independent Medical College of Chicago was a bona fide school, chartered under the laws of the state of Illinois, and that same was under the control and management of the Physio-Medical School of Medicine, and that said school had a national and state organization, with a college at Dallas, Texas, chartered under the laws of this state, and was a well-recognized school of medicine. Said board refused defendant a certificate to practice said profession of medicine. That defendant, prior to the commission of the offense charged, and before...