author: HAEPER, J.

text:
    LLOYD v. STATE.
    (No. 3986.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    Weapons <&wkey;17(6) — Unlawful Display — PROSECUTION — INSTRUCTIONS.
    In a prosecution for unlawfully and rudely displaying a pistol in a public place in a manner calculated to disturb the inhabitants, it appeared that accused went to the rear of a store and fired his pistol out of the door several times. Accused contended that he brought the pistol to the store to trade for a shotgun and fired it to exhibit its quality to the storekeeper, and there was evidence that persons frequently discharged firearms from such rear door. Meld that, in view of accused’s contention, a charge that to hold a pistol in the hand and fire it in a public place is to rudely display it was improper, as taking from the jury the question whether it was customary to discharge firearms from the rear door which led only into uninhabited woods.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 32; Dec. Dig. <g==>17(6).]
    Appeal from Wise County Court; J. W. Walker, Judge.
    Coke Lloyd' was convicted of unlawfully and rudely displaying a pistol in a public place in a manner calculated to disturb the inhabitants, and he appeals.
    Reversed and remanded.

      R. E. Oarswell and L. D. Ratliff, both, of Decatur, for appellant O. 0. McDonald, Asst. Atty. Gen., for the State.
   HAEPER, J.

Appellant was convicted under an indictment charging him with unlawfully and rudely displaying a pistol in a public place in a manner calculated to disturb the inhabitants of said public place.

Mr. Mann testified: That about 9 o’clock at night he was in the store of Foster & Best, in the town of Greenwood, and that appellant came in with a pistol, or part of a pistol, in his hands, and he, appellant, and Foster walked to the rear door. He heard them talking, but did not understand what was said. That while they were at this door, appellant fired the pistol out of the door several times, and said:

“Foster, come and fix this thing. Where is your damned constable? If any one turns me in, I will put one in him.”

That witness, Glint Kingsly, appellant, and Mr. Foster were the only persons in the store. This is the state’s case, and would perhaps sustain a verdict that appellant was guilty of the offense charged.

Mr. Foster, one of the proprietors of the store, testified that appellant had been trying to trade him the pistol for a shotgun, and that night appellant went to the store of J. P. Rudd to get the pistol and bring it over to trade to him; that the pistol was made to shoot steel cartridges, and he wanted to see if it would shoot lead cartridges; that when appellant returned with the pistol they went behind the counter and got several kinds of cartridges and went to the back door of the store to try the pistol; that he and appellant both fired the pistol out of the back door; that his store was 120 feet long, and at the rear door there was nothing but woods, and the pistol was fired into the woods; that the firm of Foster & Best sold cartridges, pistols, and other firearms, and people frequently tried them by shooting out of the back door into the woods; that the town was not an incorporated town.

J. P. Rudd testified that the pistol of appellant had been in his store some three months or more; that he had it to trade for a shotgun; that on the night appellant shot it out of the back door, appellant came and got the pistol, stating he had a chance to trade it off.

Clint Kingsly, the only other person in the store, says he heard appellant and Foster talking of trading the pistol for a gun; that he saw appellant and Foster go to the back and shoot the pistol out of the back door.

This is all the testimony. At the request of the state the court instructed the jury:

“To hold a pistol in the hand and fire the same in a public place, as herein defined, is to rudely display the same, as contemplated by law.”

Appellant excepted to the giving of this special charge, insisting it was upon tlie weight to be given the testimony, and we think such exception well taken. The state relies on the case of Gozy v. State, 34 Tex. Or. R. 147, 29 S. W.' 783, as sustaining the charge. Under the peculiar facts of that case, tlie court does say that the shooting of the pistol in the air would justify a finding that it was rudely displayed. In that case Gozy had gone near a church, while services were in progress, and fired his pistol. It was a willful and wanton act, without excuse or justification, under the evidence in that case. It might be the state’s witness makes this just such another case, but the defendant’s witnesses certainly do not, and it is a question of fact, to be determined by the jury, whether or not his conduct amounted to rude ly displaying the pistol in a manner calculated to disturb the inhabitants of the public place. The court in this charge takes this issue from the jury, and instructs them, as a matter of law, that his conduct amounted to rudely displaying a pistol. Had he submitted the issue to the jury and they had so found, we might sustain the verdict as we did in the Gozy Case, supra, but it is a matter to be determined by the jury, under the evidence, in every case whether or not one is guilty of rudely displaying a pistol in a manner calculated to disturb the peace, and is not a question of law to be determined by tlie trial court. On' account of this error, it will be necessary to reverse the cause, and on another trial the court in his charge, if he gives a charge, should submit the defense’s theory; that is, if the jury should find, under the evidence, it was customary to shoot firearms out of the back door of this store, in trying them out, as testified to by Mr. Foster, and appellant and Foster were on a trade involving the pistol, and they fired it for the purpose alone of determining whether or not it would shoot leaden cartridges, and appellant at the time he fired the pistol had no intention of disturbing the inhabitants of the public place, and they were not in fact disturbed, the appellant would not be guilty of the offense charged.

The judgment is reversed, and the cause remanded.
      <®=okor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    STONE v. STATE.
    (No. 3981.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    Criminal Law <&wkey;857(3) — Failuke of Defendant to Testift — Effect.
    Code Cr. Proc. 1911, art. 790, allows an accused person to testify, but provides that his failure shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on. In a prosecution for arson, where the state principally relied on tracks leading from the burned building to accused’s home, accused did not take the stand, but relied on evidence of alibi. Before verdict was rendered, one of the jurymen remarked that he wondered why defendant did not go on the stand and testify, and that had he done so, he might have viewed the matter differently. Other of the jurors stated that, while they did not comment on defendant’s failure until they had reached a verdict, they commented on it thereafter, and that they considered it. Held, that the conviction must he reversed it appearing the jury considered, whether they commented on the matter or not, accused’s failure to take the stand; this being true though an incidental reference to accused’s failure to take the stand will not work a reversal.
    [Ed. Note.- — For other cases, see Criminal Haw, Dec. Dig. <&wkey;>857(3).]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Jesse Stone was convicted of arson, and he appeals.
    Reversed and remanded.
    A. E. Hampton, of De Leon, and Smith & Palmer, of Comanche, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of arson, and his punishment assessed at five years’ confinement in the state penitentiary.

Appellant earnestly insists that the circumstances are insufficient to sustain the verdict. We have read and re-read the testimony; and, while the only circumstances depended upon to show appellant guilty are: (1) That appellant had ill will towards the person who had the house rented; and (2) tracks leading from the building to appellant’s house, and his conduct when he saw the officers following the tracks — yet, taking the tracks as shown by the plot and the way they were made, their direction and course, we would hardly feel authorized to disturb the verdict on this ground alone.

Appellant contends that the jury discussed his failure to testify while considering the case, and asks for a reversal on this ground. Ten of the jurymen testify, and some of them say that all that occurred was that, while the jury was discussing the case, some one of them remarked “that he wondered why the defendant did not go on the stand and testify; that he would love to have heard him testify, and had he done so, they might have viewed the matter differently.” That the foreman then promptly informed the jury they were instructed not to consider nor discuss the failure of defendant to testify, which stopped the talk. They virtually all agree that this much did take place, some saying it occurred at night, and others say it occurred just before they agreed on the verdict next day. And all seem to agree that as soon as the verdict was agreed on and written up, a general discussion took place about defendant not testifying. This took place after the verdict was signed, but before they left the jury room. It is thus made apparent that the failure of defendant to testify was in the mind of the jury, whether discussed or not. All 10 of the jury agree this much was said before the verdict was agreed on: “If he had gone on the stand, it might be different, or something like that.” The verdict in this case depends on the tracks for conviction. The evidence of the state’s witnesses show the defendant was at this house about noon of the day it was burned at 8 o’clock that night, and went from this house to his home, but this witness says the defendant did not get into the Hanson field, where the tracks were found upon which the state depends for conviction. When the officer was following this track, the defendant told him he had made those tracks, but that he was not guilty of burning the house. The evidence shows he was frequently in this section hunting, and in going to work. This is doubtless what they wanted him to explain' — when he made those tracks. Instead of taking the stand and endeavoring to explain those tracks, he relied on an alibi, sworn to by his wife and wife’s sister, and other witnesses. Mr. Randall testifies that at the time the jurors who were for a conviction were around him and Mr. CHilcoat trying to get them to agree on a verdict of guilty, some one said he would have loved to have heard the defendant testify, and he (Randall) replied:

“I would like to have heard the defendant — it might have changed my opinion of the case. Tes; I had it in my mind about the defendant not going on the stand to testify, and wanted to hear him testify. I do not know what effect it had on my mind as to what the juror, whoever, he was, said about the defendant not going on the stand and testifying. Of course if he had gone on the stand and testified my vote might have been different, and I expressed myself that way in the jury room, and others expressed themselves something similar to that.”

However, he says this did not influence him in rendering the verdict. On cross-examination he said:

“I do not know who made the first remark; there were two or three said something about him not testifying.”

Mr. Ohilcoat says he heard some remarks made, but he himself said nothing about the matter, but — *

“that his failure to go on the stand and explain about these tracks was in my mind while we were deliberating on the case.”

Code C'r. Proc. art. 790, allowing a de-, fendant to testify, if he elects to do so, but providing that a failure to testify shall not he taken as a circumstance against him, nor shall the same be alluded to nor commented on since its enactment, has been frequently before this court, and it is the rule that a mere incidental reference to it in the jury room will not be cause for reversal, where it is apparent that the failure of the defendant to testify was not considered by the jury. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Powers v. State, 154 S. W. 1020; Espinoza v. State, 13 Tex. Cr. R. 237, 165 S. W. 208; Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939; Howard v. State, 174 S. W. 607; Walling v. State, 59 Tex. Cr. R. 279, 128 S. W. 624.

In the cases of Jones v. State, 72 Tex. Cr. R. 497, 162 S. W. 1142, Clark v. State, 177 S. W. 84, Portwood v. State, 71 Tex. Cr. R. 447, 160 S. W. 345, Huddleston v. State, 70 Tex. Cr. R. 260, 156 S. W. 1168, Richards v. State, 59 Tex. Cr. R. 203, 127 S. W. 823, Thorpe v. State, 40 Tex. Cr. R. 349, 50 S. W. 383, and Wilson v. State, 39 Tex. Cr. R. 365, 46 S. W. 251, it is held that where the allusion to the failure of the defendant to testify was more than an incidental reference, and perhaps had some influence in the rendering of the verdict, it was held to present error.

In this case at least one of the jurors swears the reference was made when the other jurors were around those voting not guilty, and trying to get them to agree to a verdict of guilty. Some say the reference was made at night, some 15 or 18 hours before the verdict was finally reached; others say the reference was made in the afternoon of the second day just before the verdict was reached, and in addition to this, it is shown that as soon as the verdict was agreed on and written, and while still in the jury room, the jury as a whole entered into a discussion of the failure of the defendant to testify, and said if he had taken the stand and explained about the tracks the witnesses testify he admitted he had made, the verdict might have been different, and we cannot say that his failure to testify was not, in the language of the statute, taken by the jury as a circumstance against him when alluded to in the jury room before the verdict was agreed on. To our mind it appears that this circumstance was, as testified to by Mr. Ohileoat, “His failure to go on the stand and explain about those tracks was in my mind while deliberating on the case,” was also in the minds of the others, and the reference, allusion, or discussion of the matter was of such a nature that it might, and probably did, result in a verdict of guilty, when otherwise such a result might not have been reached. Viewing the matter in this light, we are of the opinion the case should be reversed and remanded.

The judgment is reversed, and the cause remanded.
      <gs»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DUNCAN v. STATE.
    (No. 3972.)
    (Court of Criminal Appeals of Texas.
    March 8, 1916.)
    1. Criminal Daw <&wkey;956(10) — Jury—Impartiality — Evidence.
    Evidence on hearing of a motion for new trial held insufficient to show that one accused of cattle theft was tried by an impartial jury, ohe of the jurors having expressed an opinion as to the guilt of the accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2386; Dec. Dig. &wkey;>950(10).]
    2. Criminal Law &wkey;>1158(l) — Appeal and Error — Review—Powers op Court.
    The court, on appeal from a conviction of cattle theft, is not authorized by law to pass on the question of sufficiency of evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3070, 3071, 3074; Dec. Dig. &wkey;115S(l).]
    3. Jury <&wkey;29(2) — Trial by Jury — Waiver.
    The provision that the defendant cannot waive a jury in a felony case means that he cannot waive trial by jury of men who have expressed no opinion as to his guilt.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 198; Dec. Dig. &wkey;29(2).]
    4. Jury <&wkey;97(l) — Trial by Jury — “Impartial.”
    The provision of the Bill of Rights requiring that the accused shall have a fair trial by an impartial jury, means that the jury must be not partial, not favoring one party more than another, unprejudiced, disinterested, equitable, and just, and that the merits of the case shall not be prejudged.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 431, 435, 436; Dec. Dig. &wkey;97(l).
    For other definitions, see Words and Phrases, First and Second Series, Impartial.]
    Appeal from District Court, Parker County; F. O. Mclvinsey, Judge.
    John Duncan was convicted of cattle theft, and he appeals.
    Reversed and remanded.
    Hood & Shadle, of Weatherford, and Peden & Lipscomb, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of cattle theft, and his punishment assessed at two years’ confinement in the state penitentiary.

There are several bills of exception in the record, but after a careful review of them we are of the opinion none of them present error, unless it is the bill contending that William Golden was not a competent juror. It appears that on the voir dire examination of the jury this juror answered that he heard there was such a case, but he had formed no opinion ás to the guilt or innocence of the defendant. Upon the hearing of the motion for a new trial, under allegations that this juror had formed and expressed an opinion prior to the time he was selected on the jury, evidence was heard and is embraced in the eighth bill of exceptions. The juror was called as a witness, and his testimony would tend to show that he had formed and expressed no opinion, and what he said to Will Hughes about sending appellant to the penitentiary was said in a joking way, and the way he explains it no serious consideration should be paid to it. However, the defendant introduced M. A. Kyle, who testified that shortly after Mr. Chew had lost his cattle, he and young Robert Chew were passing Golden’s house and had a conversation with Golden, and in that conversation Chew told Golden they had found two of the cattle, and his father was going to West Texas after the other two, and appellant had been arrested, charged with the theft of the cattle. That the juror then said two of his cattle had been taken out of his pasture, and “it might have been Duncan (appellant) trying to get my cows,” and remarked, “Duncan is the man who stole your pa’s cows, and we don’t want that hind of a man around here.” Mr. Hughes testifies that after this, and a weeh before the trial, he was working with Mr. Golden at a sorghum mill and the juror told him he Avas on the jury for the next weeh, and they got to talhing about the Duncan Case, and “he said he would not have to sit on Mr. Duncan’s trial because he had already formed an opinion.” The juror was again called to the stand and admitted he had a conversation with ICyle and young Robert Chew, and said he did not recollect what was said, but he had no recollection of saying that “Duncan is the man that got your pa’s cattle.” Young Chew was not called as a witness by either the state or the defendant.

If Kyle and Hughes’ testimony is Avorthy of credit, certainly the juror was not a competent juror. We have appellant’s testimony denying a portion of their testimony, admitting other portions, and not remembering as to the remainder. The trial court overruled the motion on this ground, and we are loth to disturb his finding, as this is a matter largely addressed to his discretion. , However; under the laws of this state, a man is entitled to a trial by a fair and impartial jury, and where the question of whether he has been accorded such a trial is raised, and there is a question of grave doubt raised, Ave are of the opinion the doubt should be resolved in his favor. If others had been present and testified that no such conversation took place that Kyle and Hughes swear did occur, we would not disturb the finding of the judge on the conflict of the testimony. But when we take the testimony of Mr. Golden on this hearing, he states he answered, when being examined as to his qualifications as a juror, that he had no opinion as to the guilt or innocence of the accused; yet on this hearing he testifies: “I had an opinion, of course, in one way, but I did not have a fixed opinion.” He also admits that he made the statement testified to by Mr. Kyle about Duncan running his cattle out, trying to get them.

Under such a state of facts we cannot say that appellant has been tried by a Avholly fair and impartial jury. This is a case depending on circumstantial evidence, and Avhile the evidence, in our opinion, is of that force and cogency to authorize a verdict of guilty, yet Ave are not the ones authorized by law to pass on that question. Our laws provide that even the defendant cannot waive a jury in a felony case, and, of course, this means a jury of men who have no fixed opinion as to the guilt of the person on trial. In Sorrell v. State, 74 Tex. Cr. R. 505, 169 S. W. 303, this court, speaking through Judge Williams, says: “One improper juror destroys the integrity of the verdict.”

In White’s Ann. Proc. § 4, it Is said:

“Among English-speaking peoples, ‘the right of trial by jury’ has always been considered, and Sir William Blackstone justly denominates it, ‘the palladium of civil right.’ Our Constitution requires that it ‘shall remain inviolate.’ Bill of Rights, § 15. As an essential factor in the protection of the life and liberty of the citizen, it is considered so important that our laws declare that ‘the defendant to a criminal prosecution for any offense may waive any right secured to him by law except the right of trial by jury in a felony case.’ But he is not only entitled to a trial by jury, but our Constitution characterizes the kind of jury which is to try him, and says, ‘the accused shall have a speedy public trial by an impartial jury.’ Not only so, but it is also the will and policy of the law that the ‘trial shall be alike fair and impartial to the accused and the state.’ An impartial jury and a fair-trial is what the state demands, and in her demands she is no respecter of persons. She has one law for all — the high and the low, the rich and the poor, the friendless, the most debased and hardened of criminals. Steagald v. State, 22 Tex. App. 464, 3 S. W. 771: Massey v. State, 31 Tex. Cr. R. 371, 20 S-. W. 758. The language of the provision of the Bill of Rights is that the accused, ‘shall have a fair trial by an impartial jury.’ ‘Impartial’ means ‘not partial; not favoring one party more than another, unprejudiced, disinterested, equitable, just.’ To be impartial means the party, his cause or the issues involved in his cause, should not — must not —be prejudged. The accused is entitled to a fair trial by an impartial jury, and there is no other method provided by which he can be tried and punished.”

The judgment is reversed, and the cause is remanded.
      iSncsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    REDWINE v. STATE.
    (No. 3992.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    1. Witnesses <&wkey;52(7) — Competency — Husband and Wife.
    In a prosecution for rape, census affidavits of prosecutrix’s mother, the vrife of defendant, showing the age of prosecutrix, introduced as original evidence, and taken out of the hearing and knowledge of defendant, are inadmissible, though they might have been used for corroboration or impeachment of the mother if she had testified.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 132-134; Dec. Dig. &wkey;52(7).]
    2. Witnesses <&wkey;52(7) — Competency — Husband and Wife.
    In a criminal prosecution, the state cannot use the testimony of defendant’s wife, nor call her as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 132-134; Dec. Dig. <&wkey;>52(7).]
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    S. W. Redwine was convicted of rape, and appeals.
    Reversed and remanded.
    Faver & Allison, of San Saba, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of rape on a girl under 15 years of age; his punishment being assessed at 28 years’ confinement in the penitentiary.

Among other questions presented for review, bills of exception recite that certain named witnesses were permitted to testify they took the school census for 1911, 1912, 1913, and 1914, at least for two or three years, and that name of the prosecutrix ap- * pears upon the census roll, as does the names of the brother and sister of the prosecutrix. These reports show that prosecutrix was born August 16, 1900, making her less than 15 years of age at the time of the alleged rape, the last act being shown as having occurred on the 20th of December, 1914. These census affidavits were made by the mother of the prosecutrix; appellant being the stepfather of the prosecutrix. This was used as original testimony, and therefore illegitimate. The mother did not testify, being the wife of the defendant. He did not see proper to call her as a witness. The state could not use her testimony, nor call her as a witness. Had she taken the witness stand and testified, under a proper predicate, these affidavits could have been used to impeach or corroborate, owing to how the question would arise. This matter has been the subject of decision in our courts on the question of impeachment and sustaining the impeached witness. Walton v. State, 178 S. W. 358; Hopkins v. State, 180 S. W. 1094. These census affidavits were used as original testimony, were made by the wife, and all but one were taken out of the hearing of the defendant, and of which he seems to have had no knowledge; at least he was not present when those matters occurred. There is doubt as to the remaining one as to whether he heard it or not. If he heard this, it might be intra-ducibie, but the issue is there as to whether he heard it or not, and the jury should be guarded against using the statements unless it be shown that appellant heard them.

There is also a question with reference to the introduction of the Bible and the supposed erasures, showing the birth of the girl. It is unnecessary to pass upon the matter as to whether the bill was proper and the Bible admissible. There were changes in the entry. These matters can be properly adjusted upon another trial.

The judgment is reversed, and the cause remanded.
      (fcvjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    ROSBORO v. STATE.
    (No. 3994.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    Criminai Law <&wkey;109O(l) — Appeal — Bills op Exceptions — Statement op Facts. Without a statement of facts or bills of exceptions, no question is presented for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2805-2807, 3204; Dec. Dig. &wkey;1090(l).]
    Appeal from District Court, Camp County; R. M. Smith, Judge.
    Mid Rosboro was convicted of incest, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for incest, but without a statement of facts or bills of exceptions. In the absence of these, no question is presented which we can review. The case must necessarily, therefore, be affirmed.


author: DAYIDSON, J.

text:
    LARGE v. STATE.
    (No. 3975.)
    (Court of Criminal Appeals of Texas.
    March 8, 1916.)
    Criminal Law <&wkey;1090(l) — Questions Presented fob Review.
    Where there was nothing in a motion for new trial that could be considered in the absence of the testimony, and neither a statement of facts nor a bill of exceptions was in the record, there was nothing to review on appeal.
    [Ed. Note. — For other cases, -see Criminal Law, Cent. Dig. §§ 2653, 2807, 3204; Dec. Dig. &wkey;1090(l).]
    Appeal from Dallas County Court, at Law; T. A. Work, Judge.
    Charley Large was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $25.

There is nothing in the motion for new trial that can be considered in the absence of the testimony, and nothing presented by bill of exceptions. In fact, there is neither a statement of the facts nor a bill of exceptions in the record.

There being nothing to review in this appeal, the judgment will be affirmed.


text:
    FYKE v. STATE.
    (No. 3980.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    1. Indictment and Information <&wkey;lll(l)— Sufficiency of Indictment — Negative Allegations.
    Under Pen. Code 1911, art. 748, making it unlawful for any physician to prescribe, for the use of any habitual user of the same, any cocaine or morphine, provided physicians may prescribe in good faith for habitual users of narcotic drugs such substances as they may deem necessary for the treatment of the habit, am indictment need not allege that the drugs were not prescribed as a cure for the habit.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 295; Dec. Dig. &wkey;lll(l)J
    2. Poisons <&wkey;4 — Prescribing Narcotics — When Prohibited.
    Pen. Code 1911, art. 748, making it unlawful to prescribe a narcotic drug for an habitual user thereof, does not prohibit the prescribing of such drug when necessary to alleviate pain or cure the drug habit.
    [Ed. Note. — For other cases, see Poisons, Cent. Dig. § 2; Dec. Dig. <&wkey;4.]

      S. Poisons <&wkey;9 — Prescribing Narcotics— Evidence — Admissibility.
    In a prosecution under Pen. Code 1911, art. 748, prohibiting the prescribing of narcotic drugs to habitual users thereof, it is error to exclude defendant’s evidence that he gradually reduced the size of the dose, and finally ceased it altogether; that being material to show that the drug was prescribed in an effort to cure the habit.
    [Ed. Note. — For other cases, see Poisons, Cent. Dig. § 6; Dec. Dig. <&wkey;9.]
    4. Poisons <&wkey;9 — Instructions — Issues —* Purpose oe Administering Narcotic.
    Where there is evidence that a drug was prescribed to relieve pain, it is error, in a prosecution under Pen. Code 1911, art. 748, prohibiting prescribing narcotic drugs to_ habitual users thereof, to refuse to charge that if the drug was administered in an effort to relieve pain the defendant physician was not guilty.
    [Ed. Note. — For other cases, see Poisons, Cent. Dig. § 6; Dec. Dig. <&wkey;9.]
    5. Poisons <&wkey;9 — Instructions—Purpose oe Evidence. •
    In a prosecution under Pen. Code 1911, art. 748, prohibiting the prescribing of narcotic drugs to habitual users thereof, where there was evidence that the defendant prescribed such drugs to alleviate pain and suffering, it was error to instruct that the drug user’s evidence could be considered only on the question whether the physician was treating her for the drug habit; the alleviation of pain and suffering being included within the exception of the act.
    [Ed. Note. — For other cases, see Poisons, Cent. Dig. § 6; Dec. Dig. <&wkey;>9.]
    6. Poisons <&wkey;9 — Instructions — Intent — Administering Narcotic.
    Refusal of defendant’s requested instruction on púrpose of the prescription in prosecution for prescribing narcotic drug to habitual user thereof held erroneous under the evidence.
    [Ed. Note. — For other cases, see Poisons, Cent. Dig. § 6; Dee. Dig. <&wkey;9.]
    Davidson, X, dissenting in part.
    Appeal from' Tarrant County Court; Jesse M. Brown, Judge.
    E. D. Fyke was convicted of prescribing morphine for a habitual user thereof, and he appeals.
    Reversed and remanded.
    Baskin, Dodge, Baskin & Eastus, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment.charges appellant, under article 748 of the Penal Code, with being then and there a lawfully authorized practitioner of medicine, and, as such, did then and there unlawfully prescribe morphine for the use of Maud Smith, who was then and there an habitual user of morphine, contrary to the statutes, etc. That article provides that it shall be unlawful for any practitioner of medicine, dentistry, or veterinary medicine to furnish to, or prescribe for the use of, any habitual user of the same, any cocaine or morphine, or any salts or compound of cocaine or morphine, or any preparation containing cocaine or morphine or their salts, or any opium or chloral hydrate, or any preparation containing opium or chloral hydrate, etc., “provided, however, that the provisions of this section shall not be construed to prevent any lawfully authorized practitioner of medicine from prescribing in good faith for the use of any habitual user of narcotic drugs such substances as he may deem necessary for the treatment of such habit.”

Various objections are urged to the sufficiency of this indictment, all growing out of and incidental to the proviso above quoted. The indictment does not set out the proviso, or negative the fact that he was treating the woman for the morphine habit. The writer believes the indictment insufficient under the following authorities: Blair v. State, 50 Tex. Cr. R. 225, 96 S. W. 23; Blair v. State, 97 S. W. 89; Brown v. State, 74 Tex. Cr. R. 498, 168 S. W. 861; United States v. Carney (D. O.) 228 Fed. (Advance Sheet No. 2, February 10, 1916} 163. The majority of this court, however, do not agree with the writer, and thinks the indictment is sufficient, and that it is not necessary to negative this proviso in the indictment. The writer does not care to discuss the matter, inasmuch as it would be unnecessary, in view of the fact that the majority of this court does not agree with his views. It will be observed, from a casual reading of article 748 of the Penal Code, that its denunciations are leveled at practitioners, or prohibits practitioners' from administering morphine to habitual users of that drug or any of the drugs mentioned. It is also discernible on the face of the statute that it was not intended to prevent practitioners from administering this drug in ease of sickness, or to alleviate pain, or to cure the habit of using morphine. In other words, its provisions seem to be directed against the named physicians or practitioners with a view of prohibiting them from prescribing or administering these mentioned drugs to habitual users of the same in order to continue their use. The statute was intended to prohibit these practitioners from administering those drugs to those who are addicted to the habit of using them for the purpose of continuing that habit. It does not interdict the administration of these drugs where it is necessary to alleviate pain or to cure the habit. Therefore, if the practitioner administers it to alleviate such pain, or uses it in good faith where the party is sick, or as a means of finally curing the habit, it is not within the statutory denunciation.

Under the facts, briefly stated, Maud Smith had been a morphine fiend, addicted to the use of it, and had become emaciated and confined to her bed. Appellant, as physician, administered the morphine for two purposes: First, to relieve her of her present suffering ; and, second, to cure her of the habit. The evidence of the woman, Maud Smith, makes it apparent that he succeeded in both. She testified that appellant prescribed morphine, and that she at the time was bedridden; that when she first called appellant in hé had to visit her at her house, and treat her for peritonitis and swollen condition of the groins and inflammation of the bowels, and continued sick for some considerable length of time. She was not able to carry her own prescriptions and have them filled. She was not able to get out of bed, and her sister frequently went and got the prescriptions filled for her and brought the medicine to her, and she took it according to appellant’s direction. He informed her what he was treating her for, and gave her other medicine in addition to morphine. It was a very painful disease she had, and she said her side is not entirely well yet. He performed operations on her. He opened up one of those abscesses on the inside of her somewhere and let out the pus in these places; once on the inside and twice on the outside in the groin at these afflicted places, and it was during that time he gave her the morphine. She says;

“Certainly the morphine had the effect of easing the pain while -this treatment was going on. That is what he gave it to me for — to ease the pain. I was in that condition for some time, and during all of that time Dr. Fyke gave me two different kinds of medicine, as well as performing these operations on me that I have mentioned. I finally got up under his treatment. I am not well yet, and I still suffer with those pains; but I am a whole lot better-able to be up all the time. 'This peritonitis condition on the inside where he opened it and let out this pus, that has been relieved largely, and those glands that were affected and the groin have been relieved a whole lot, and under his treatment I have practically recovered from these diseases that I have had. At the time that Dr. Fyke began, to treat me, I did not weigh very much. I was sick in bed and did not weigh very much — not more than 75 or 80 pounds.”

Her present weight is 125 to 126 pounds. She says:

“I am not using this drug now. I remember the doctor giving me some medicine that he called the Lambert Treatment. It was a kind of reddish-brown medicine. He gave me that medicine before I came before the grand jury. I was taking that when I was up before the grand jury, but I did not know what it was. I am not now using the drug, and Dr. Fyke cured me of the habit. I have sworn that I am not using morphine now, and I am not mistaken about that.”

The testimony further shows that she has been cured by appellant’s treatment of the morphine habit and is not now using this medicine or drug.

Among other things, it was offered to be shown by the appellant that the size of the dose of morphine gradually grew less, until it altogether ceased, under his treatment. This was excluded, and proper exception reserved. This testimony should have gone before the jury. It bore directly upon the case, and was pertinent to show his good faith in using the morphine to cure the habit of using that drug.

If appellant administered the drug to relieve Maud Smith of the pain from peritonitis and from the swollen glands in the groin, not for the purpose of continuing her habit, but for relieving, for the time being, her suffering, in the course of treatment of his patient, it was legitimate and proper. Appellant sought to have this charged to the jury. The court not only refused to do so, but charged the converse of the proposition. This was error. The court charged the jury in this connection, and limited their consideration of the matter to the fact that defendant in prescribing the morphine did so in good faith, deeming it necessary for the treatment of the morphine' habit. That was one phase of the ease. Appellant insisted, and correctly so, that, if he gave the medicine to relieve her of pain at the time he was called in, this should not have been made the basis of a conviction. The court further charged the jury:

“You cannot consider the evidence of the witness Maud Smith with reference to her physical condition, except for the purpose of showing that the defendant was treating the said Maud Smith for the habit of using morphine; and you are further instructed that you cannot consider the evidence of the said Maud Smith to the effect that since the indictment in this case was returned she had quit using morphine, except for the purpose of showing that, at the time the defendant gave her the prescription mentioned in the indictment, he did so in good faith, deeming the same necessary for the treatment of said habit of using morphine.”

This was the court’s charge. We think it was erroneous. It applies the law only to curing the woman of her habit of using morphine. Appellant asked the court to instruct the jury that if appellant prescribed morphine for Maud Smith, an habitual user of such drug, as charged in the indictment, but they further find and believe that the said Maud Smith was suffering at the time from a disease known as peritonitis and from another disease described as abscesses in the groin, and that defendant prescribed such drug in good faith, believing the same to be necessary in the treatment of such diseases, or if they had a reasonable doubt as to whether or not such was the case, it would be the duty of the jury to acquit. This charge should have been given.

He also asked the court to charge the jury that if appellant prescribed morphine for the use of Maud Smith, but further find and believe that Maud Smith was suffering at the time from a disease known as peritonitis and from another disease described as abscesses in the groin, and that the defendant prescribed such drug in good faith, believing the same to be necessary in the treatment of such diseases, or if they had a reasonable doubt as to whether or not such was the case, appellant was entitled to the benefit of the doubt and should be acquitted, although they should find and believe that Maud Smith was an habitual user of said drug. These charges should have been given.

•It is unnecessary, we think, to follow up this matter, for under the general view of the statute it was only intended to prevent the prescribing of moj^phine to a party addicted to the habit. It was not intended to prevent a lawful practitioner of medicine from administering morphine, or such drugs, if necessary in the treatment of the disease from which a patient is suffering, or to relieve from pain at the time. If appellant, as a lawful practicing physician, administered to his patient, Maud Smith, morphine, who was suffering with peritonitis and those abscesses mentioned, and it was known to defendant, and he .did it for that purpose, he would not be violating the statute. Nor would he be guilty of a violation of the statute if, in treating or curing her of the habit itself, he administered it in such way as it assisted in curing the habit. These matters should have been submitted to the jury under the testimony adduced from the state’s witness Maud -Smith. This treats the statute in a general way. There are a great number of exceptions presenting these matters in different ways, as well as exceptions to the ruling of the court, who took the opposite view from that which has been announced as the true purpose and intent of the statute. Upon another trial these matters should be charged to the jury, and they should be plainly told that if appellant administered this drug to relieve Maud Smith’s pain, when first called in, and further that he continued to use it in curing the habit, they should not convict him. The evidence seems to be uncontroverted that in his treatment he finally cured her of the habit; that he found her in an emaciated and run-down condition, weighing 75 or 80 pounds, and had cured her of the habit, and her strength had increased until she was up and going about and able to go about and her weight had increased from 75 or 80 pounds up to 125 or 126 pounds. Without going into details, or mentioning all the exceptions and taking them up seriatim, this is the general view which we think to be correct, and these matters will be observed upon another trial.

The judgment is reversed, and the cause remanded.
      <&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GAY v. STATE.
    (No. 3964.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.
    On Motion for Rehearing, March 29, 1916.)
    1.Indictment and Information <&wkey;110(30) —Physicians and Surgeons — Practicing Without a License — Sufficiency of Information.
    A complaint and information, charging that defendant resided in the county and did unlawfully engage in the practice of medicine therein, and as a reg;ular practitioner did prescribe for, visit professionally, and treat certain patients named for diseases without having first registered in the district clerk’s office a certificate from some authorized board of medical examiners, or a diploma from some accredited medical college, and without having filed for record in such office a verification license from the state board
    of medical examiners, followed the law and were sufficient.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 291-294; Dee. Dig. <&wkey;>110(30).]
    2. Physicians and Surgeons <&wkey;5(4) — Authority to Practice — Licenses.
    A license issued to defendant by a member of a medical examining board in 1892, certifying that defendant had been examined by such member of the board and was thereby licensed to practice medicine and surgery until the next regular meeting of the board, showed on its face that it was a mere temporary license, good only until the next regular meeting of the board, and under no circumstances could be considered the verification license required to be filed under the present law.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 5; Dec. Dig. &wkey;> 5(4).]
    3. Physicians and Surgeons <&wkey;2 — Regulation of Practice — Statutory Provisions.
    The Legislature had the power and authority to enact Acts 30th Leg. c. 123, regulating the practice of medicine.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 2; Dee. Dig. <&wkey;>2.]
    4. Constitutional Law @=^70(3) — Legislative and Judicial Functions.
    The wisdom of a statute was for the Legislature, and not for the courts.
    [Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. § 131; Dec. Dig. <&wkey;>70(3).]
    On Motion for Rehearing.
    5. Physicians and Surgeons <&wkey;5(l) — Authority to Practice — Licenses.
    Acts 30th Leg. c. 123, § 4, provided that “from and after the passage of this act” it should be unlawful for any one to practice medicine who had not registered in the district clerk’s office his authority for so practicing. Section 6 provided that, “within one year after the passage of this act,” practitioners who, practicing under the provisions of previous laws, or under the diplomas of a reputable and legal college of medicine, had not received a license from a medical examining board, should present to the state board of medical examiners documents establishing the existence and validity of such diplomas or license theretofore issued by previous examining boards, or exemption existing under any law, and should receive from the board a verification license, which should be recorded in the district clerk’s office. These sections, omitting the quoted words, are now articles 750 and 752 of the Penal Code of 1911. Section 15 provided that all certificates theretofore issued under any former law should continue in force for one year, but not afterwards, and that any person then practicing medicine under existing laws or any exception contained therein, but without a license, might continue in such practice for one year but not longer, and that all such certificates and rights to practice should be subject to that act. This section is not in the Penal Code, but in place thereof article 757 provides that the provisions of that chapter shall not apply to any person regularly engaged in the practice of medicine for five years prior to January 1, 1875, nor to any person legally qualified under a prior act therein specified, nor to those practicing medicine prior to January 1, 1885, or who began the practice of medicine thereafter, and have complied with the laws regulating the practice of medicine in force. Held, that this article does not abrogate article 752, and relieve the classes of practitioners therein mentioned from procuring and recording a verification certificate, but merely authorizes them to procure such verification license, though the year originally given for that purpose has expired.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 5; Dec. Dig. 4&wkey; 5(1).]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    L. TV. Gay was convicted of unlawfully practicing medicine, and he appeals.
    Affirmed.
    A. B. Haworth, of Comanche, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully practicing medicine, and his punishment assessed at a fine of $50 and one hour in jail.

The complaint and information aver that appellant resided in and was a resident of said county, and that:

He “did then and there unlawfully engage in the practice of medicine upon human beings for pay in said Comanche county, and the state of Texas, and us a regular practitioner did prescribe for, visit professionally, and treat patients for diseases, to wit, did visit, prescribe for and treat Mrs. H. J. Moore, Beulah Renfro (daughter of W. R. Renfro), and divers other persons to the affiant unknown, without having first registered in the district clerk’s • office of Comanche county, Tex., the county of said defendant’s residence, a certificate from some authorized board of medical examiners for the state of Texas, or a diploma from some credited medical college, and without having filed for record in the district clerk’s office of Comanche county, Tex., a verification license from the state board of medical examiners of the state of Texas.”

These pleadings followed the law and are unquestionably sufficient. The court did not err in overruling appellant’s motions to quash the pleadings nor in overruling his motion in arrest of judgment.

The uncontradicted testimony clearly sustained all of the allegations and showed appellant’s violation of the law.

The only authority to practice medicine which appellant had registered in the district clerk’s office of Comanche county was a certified copy from the district clerk of Wilson county dated December 7, 1914. The document thus certified was as follows:

“L. W. Gay, M. D. The State of Texas, County of Wilson. Know all men by these presence (presents) that L. W. Gay, of. the county of Wilson and state of Texas has been this day examined be (by) me I. H. Brewton, M. D., a member of the Medical Ex. Board of Twenty-Fifth Judicial District and is hereby licensed to practice medicine, surgery and obsteries (obstetrics) until the next regular meeting of the Medical Board of this Judicial District. In testimony whereof I hereunto affix my hand and seal this 8th day of December, 1892. Isaac H. Brewton, Member of Medical Board.”

This, on its very face, showed that it was a mere temporary license issued December 8, 1892, by a member of the medical board under the old law as it then existed, and by its own terms was good only until the next regular meeting of the medical board of the district mentioned. Under no circumstances could it be the verification license under the law as it has been since 1907.

The act of the Legislature approved April 17, 1907 (page 224), now contained in our Revised Civil Statutes as articles 5783-5746, inclusive, and most of them also in our Penal Code as articles 750-756, inclusive, repealed all other laws on the subject of licensing physicians. One section of said-act, now article 757, P. C., expressly exempted all persons who had been regularly engaged in the general practice for five consecutive years prior to January 1, 1875, and others who had legally qualified themselves to practice under the provisions of the act of May 16, 1873, and those who were practicing in Texas prior to January 1, 1885, and since, “who have complied with the law of this state regulating the practice of medicine -in force,” meaning, of course, all such otherwise exempted persons who have complied with said act of 1907. And another section of said act (article 752, P. O.) expressly requires that all of said exempted persons by said article 757 shall present to the board of medical examiners under said act of 1907 all documents, or legally certified transcripts of such, sufficient to establish the existence and validity of their diplomas or the valid and existing licenses theretofore issued by any previous examining board or exemptions existing under any law, and, in effect, when they do this and show that they are embraced within any of said exemptions, that the present board, under said act of 1907, shall issue to them a verification license, which verification license shall be recorded in the district clerk’s office of the county in which the licentiate resides. It is unnecessary to enumerate the further provisions of said article. The act and the said several sections thereof clearly show that, in order for any one who is exempted by the act to thereafter legally practice medicine in this state in any of its branches, he shall present his credentials to the said board as it now and since 1907 has existed, and procure from such board a verification license and record that; and, if they do not do so, but practice medicine without it, they violate the law and are subject to the penalties thereof.

The unquestioned evidence shows that appellant did not procure said verification license and record it, but practiced without it, and hence unquestionably has violated the law.

These exemptions, and none of them, would authorize appellant, without getting the verification license and recording it, to practice medicine. Hence all of appellant’s charges and other points raising said issue were correctly refused by the trial judge, and none of his bills show any error.

Because of the law above stated, the court did not err in refusing to permit appellant to testify, in substance, that he was practicing medicine in Texas prior to January 1, 1885, and had graduated in the State Uni-

versity of Louisiana in the Medical Department, in 1868, and came to Texas and immediately thereafter engaged in the general practice of medicine in its various branches and continued therein from 1868 until the complaint was filed against him herein. No such testimony by him, under the circumstances, would be any defense whatever. Nor did the court err in refusing the testimony of others along the same line.

We think it wholly unnecessary to take up and discuss any of appellant’s bills of exceptions and requested charges separately. What we have said as to the law of the case, and the application thereof to the uncontroverted facts, disposes of all of them, against appellant. His contention and all of his points hinged around the same to the effect that, under the law as it now is, appellant was not required to get a verification license and record it in order to entitle him to practice medicine, which he had been doing all these years. Unfortunately for him, it seems, the law is against him, and none of his contentions can be sustained. He may think that the law should not embrace him, and that it is a hardship upon him that it does. Yet we are bound by the law as well as he, and we cannot exempt him as we otherwise might want to do. The said law has been held constitutional by the United States Supreme Court and many times by this court. The Legislature had the power and authority to enact it. Its wisdom was for the Legislature and not for the courts.

It therefore becomes our duty to affirm the case, which is, accordingly, ordered.

On Motion for Rehearing.

Appellant claims that article 757, P. C., was not a part of the act of 1007, and not a law in whole or in part from the passage of said act until it was placed in the revision of 1911, and contends that ever since then it has been lawful for any physician of any of the classes mentioned therein to practice without any verification, or other, license, and, as he is embraced within said exemptions, that article 752 is therefore inapplicable to him, and he can legally practice without any license and the record thereof. His whole defense was based on that idea. If his contention had been correct, this case should necessarily be reversed, because he offered, and the court excluded, his, and other, testimony, as shown in the original opinion, which would have brought him within the exemptions of article 757.

In view of his urgent insistence, we will further discuss the question. To do so, it will be proper to mention briefly but generally the legislation on the subject, and the reasons therefor.

■ To protect the lives, and preserve the health, of the people, is one of the chief objects and duties of government. In order to help do this, our Legislature, since the establishment of our state government, has all along, and from time to time, enacted laws to prevent the incompetent person, the faker, and the fraud, from deceiving the sick and afflicted under their false claim to “cure all” and from fleecing them of their money, and at the same time fully provide for the proper license of those who prepare themselves by a thorough study and knowledge of the human body, and the diseases and ailments to which it is subject, and thus prepare themselves to properly administer to, and treat, the sufferer. One of the best methods theretofore devised to accomplish this, and let all the people know who were competent and authorized, was to require, as a prerequisite to practice, a proper authority duly recorded in the district clerk’s office of the county of the residence of the practitioner, which any and every one could see for himself, and that method still prevails. At an early day, a diploma from a reputable medical college, duly so recorded, was required, and perhaps was all that was then required. It was not long till the faker and fraud took advantage of this, and procured and recorded diplomas from medical colleges, which sold diplomas outright to any and every one who paid the price, and without any previous study or preparation. Also, it developed that many young men, for lack of means or other reasons, were unable to attend colleges and procure a diploma, but who studied at home and under the instruction and assistance of local physicians fully prepared themselves to practice as well as those who attended colleges and procured a diploma. For all such the Legislature provided medical examining boards, where such young men could stand examinations and procure license to practice without any diploma. In the course of time, another class had grown up, which consisted of those worthy and competent practitioners who, without license or diploma, by many years of study and practice, had demonstrated their competency to practice. All three of these classes were duly provided for and protected by the various enactments of the Legislature, from time to time; but some or all persons in these classes were required to do certain things in order to evidence, or establish, the fact of their being embraced within one or the other of these exemptions. It is unnecessary to cite these various ac-ts of the Legislature.

As stated in the original opinion, the said act of 1907 repealed all previous legislation on the subject, and by that act regulated the whole matter.

Section 4 of that act is:

. “(From and after the passage of this act) it shall be unlawful for any one to practice medicine in any of its branches upon human beings within the limits of this state who has not registered in the district clerk’s office of the county in which he resides his authority for so practicing, as herein prescribed, together with his age, postoffiee address, place of birth, school of practice to which he professes to belong, subscribed and verified by oath, which, if willfully false, shall subject the applicant to conviction and punishment for false swearing as. provided by law. The fact of such oath and record shall be indorsed by the district clerk upon the certificate. The holder of the certificate must have the same recorded upon each change of residence to another county, and the absence of such record shall be prima facie. evidence of the want of possession of such certificate.”

In said revision, that section is made article 750, P. C., literally, except the words, “from and after the passage of this act,” are omitted, and is preceded by these words: “Authority to practice registered in district clerk’s office; change of residence recorded, where.”

Section 6 of that act is:

“(Within one year after the passage of this act) all legal practitioners of medicine in this state, who, practicing under the provisions of previous laws, or under diplomas of a reputable and legal college of medicine, have not already received license from a state medical examining board of this state, shall present to the board of medical examiners for the state of Texas documents, or legally certified transcripts of documents, sufficient to establish the existence and validity of such diplomas or of the valid and existing license heretofore issued by previous examining boards of this state, or exemption existing under any law, and shall receive from said board verification license, which shall be recorded in the district clerk’s office in the county in which the licentiates may reside. Such verification license shall be issued for a fee of fifty cents to all practitioners who have not already received a license from the state board, of medical examiners of this state. It is especially provided that those whose claims to state licenses rest upon diplomas from medical colleges recorded from January 1, 1891, to July 9, 1901, shall present to the state board of medical examiners satisfactory evidence that their diplomas were issued from bona fide medical colleges of reputable standing, which shall be decided by the board of medical examiners before they are entitled to a certificate from said board. This board may, at its discretion, arrange for reciprocity in license with the authorities of other states and territories having reguirements egual to those established by this act. License may be granted applicants for license under such reciprocity on payment of twenty dollars.”

In the revision, that section is made article 752 literally, except the omission of these words, “Within one year after the passage of this act,” and is preceded by these words, “Practitioner of medicine to receive verification license.”

Section 15 of that act is:

“All certificates heretofore issued by any board of medical examiners in this state under any former law shall be and continue in full force and effect for one year after this act shall take effect, but not afterward, and any person who may, when this act shall take effect, be practicing medicine within this state under the provisions of existing laws or under any exception contained therein, but without license, may, for one year thereafter, but not longer, continue in such practice, without license; and all such certificates and all such rights to practice medicine shall be in all respects subject to the provisions of this act as though issued or acquired under its provisions.”

.In the revision, in place of that section is article 757, reading:

“The provisions of this chapter shall not apply to any person who has been regularly engaged in the general practice of medicine, in any of its branches or departments, in this state, for five consecutive years prior to January 1, 1875.; nor to any person who may have legally qualified himself to practice medicine under the provisions of an act, entitled, ‘An act to regulate the practice of medicine,’ passed May 16, 1873; nor to all those who were practicing medicine in Texas prior to January 1, 1885;. nor. to all those who began the practice of medicine in this state after the above date, who have complied with the laws of this state, regulating the practice of medicine, in force.”

While the language of the two are not the same, fully the same exemptions are embraced in each. If appellant’s contention should prevail, then article 752 would he a dead letter as to all those embraced in article 757, and the door to those unlicensed practitioners thrown wide open. No such intention by the Legislature can reasonably be drawn from said articles, nor the whole act, nor the law as now contained in the revisions only.

Said articles must be construed together so that both shall stand, if that can be, and they must be considered in connection with the previous legislation, and the whole law now on the statute books. We think it clear, not only from all previous legislation, but also from said act of 1907, and even the Codes as now revised only, that no one can legally practice medicine, or the healing art or science, on human beings, by any system or method, with or without administering medicines, and charge therefor, without first procuring a license to do so and recording it in the district clerk’s office of his residence; and that this was the clear intent of the Legislature. It is seen that by said section 15 all the old physicians were there given a year, but no longer, to get the new verificatiqn license from the board created by it, without standing any examination. However, by placing said article 757 in the revision, instead of said section 15, it was intended, and only intended, they should still not be cut off entirely, as section 15 provided, but given another opportunity to get a verification license by complying with said article 752, and they still have that opportunity. Appellant not having availed himself of the opportunity within the year after the act of 1907 went into effect, and still not doing so after the law was re:enacted in the revision giving him still the opportunity, but 'practicing contrary to and in the face of the law, must suffer the consequences of his own acts.

Appellant now, for the first time, complains of what he claims are some informalities in the judgment. But we think the judgment sufficiently complies with the statute and the decisions. Articles 866-868, C. C. P.; Terry v. State, 30 Tex. App. 408, 17 8. W. 1075; Ex parte Dickerson, 30 Tex. App. 448, 17 'S. W. 1076.

The motion for rehearing is overruled.
      <§^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ■


text:
    MEREDITH v. STATE.
    (No. 3946.)
    (Court of Criminal Appeals of Texas.
    Feb. 23, 1916.
    Rehearing Denied March 22, 1916.)
    1. Embezzlement &wkey;>30 — Indictment—Sufficiency.
    In a prosecution under Pen. Code 1911, art. 691, making an insurance agent who collects premiums and converts them to his own use guilty of larceny, it is not necessary to allege the ownership of the money in any particular person; the statute being provided to cover the condition wherein actual ownership cannot be alleged.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 44, 45; Dec. Dig. &wkey;>30.]
    2. Statutes <&wkey;118(l) — Enactment — Sufficiency of Title.
    Acts 31st Deg. c. 108, § 51 now (Pen. Code 1911, art. 691), entitled “an act to regulate the business of insurance companies and providing-penalties for violations of the provisions of the act,” is not void because of insufficient title ; the title properly including prosecutions ©f insurance agents for larceny by embezzling premiums paid.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 158, 159; Dee. Dig. &wkey;118(l).j
    3. Embezzlement &wkey;>30— Indictment — Description of Parties — Sufficiency.
    While an indictment for larceny by embezzlement must allege that the defrauded party was a corporation, if that was the fact, it is not necessary to allege that other corporations interested but not defrauded were corporations.
    [Ed. Note. — For other cases, see' Embezzlement, Cent. Dig. §§ 44, 45; Dec. Dig. <&wkey;>30.]
    4. Indictment and Information <&wkey;61 — Alleging Matters Judicially Noticed — Description of Parties.
    An indictment for larceny by embezzlement, alleging that the accused was an agent for a life insurance company lawfully doing business in the state, was equivalent to an allegation that it was a corporation, since the act regulating insurance companies and requiring their incorporation is a general law of which the courts must take judicial notice.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 183; Dec. Dig. &wkey;?61.3
    5. Embezzlement <&wkey;42 — Evidence—Admissibility.
    Where one accused of larceny by embezzlement testified that the applicant for insurance called on him and he told him that his application had been canceled and he would have to see the state agent for a return of the premium, the state agent could testify that the applicant called and did receive the premiums.
    [Ed, Note. — For other cases, see- Embezzlement, Cent. Dig. § 64; Dec. Dig. <&wkey;>42.]
    6. Embezzlement &wkey;>38 — Evidence—Admissibility.
    In a prosecution for larceny by embezzling insurance premiums, the contract under which the accused was working for the insurance company was admissible; its terms being binding upon him.
    [Ed. Note. — For other eases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. &wkey;>
    7. Criminal Law <&wkey;400(7) — Best Evidence —Admissibility.
    While an agent cannot testify as to the contents of his contract, he may testify that he did make a contract of employment with the principal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-8S6; Dec. Dig. <&wkey;> 400(7).]
    8. Criminal Law &wkey;>447 — Parol Evidence to Vary Writings — Admissibility.
    Where a contract of employment is in writing and specifically stipulates the amount of commissions to be paid, oral testimony as -to the amount of commissions' is inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1029-1031; Dee. Dig. t&wkey;> 447.]
    9. Embezzlement <&wkey;38 — Evidence—Admissibility.
    Where one accused of having embezzled insurance premiums testified that he had received a premium and had paid it to no one, it was not error to admit testimony of his superior that he had not- received it or permitted defendant to appropriate it.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. &wkey;>
    10. Embezzlement &wkey;>14 — Elements — Offenses.
    An insurance agent receives premiums under the conditions of his employment, and under no circumstances may he appropriate them to his own use, so that failure of the applicant to sign a new application as required by the company would not affect his guilt in appropriating the premiums.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 13-15; Dec. Dig. &wkey;>14.j
    11. Embezzlement <&wkey;48(2) — Instructions— Issues.
    In a prosecution for embezzlement of insurance premiums, where the agent himself testified that he had received them and had paid them to no one but had spent the money, the issue of good faith in retaining the money was not involved, and an instruction thereon was properly refused.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 73; Dec. Dig. &wkey;»48(2).]
    12. Embezzlement <&wkey;22 — Character of Offense — Mitigation.
    Although an insurance agent accused of embezzling premiums could have retained 40 per cent, thereof, had the policy been issued, that would not reducg the crime from a felony to a misdemeanor, where the policy was not in fact issued and he never became entitled to any of the premium.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 30; Dec, Dig. &wkey;>22.]
    13. Embezzlement <&wkey;47 — Character of Offense-Mitigation .
    In such case, the question of joint ownership of the premium by the insurance company and the accused was not involved and was properly withheld from the jury.
    [Ed. Note. — For other cases, see Embezzlement, Dec. Dig. <S=>47.]
    Appeal from District Court, Medina County; R. H. Burney, Judge..
    W. R. Meredith was convicted 'of larceny by embezzlement, and he appeals.
    Affirmed.
    De Montel & Fly, of Hondo, and John R. Storms, of San Antonio, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted under an indictment, omitting formal parts, alleging that:

Appellant “was an insurance agent and solicitor, to wit, an agent and solicitor for the ¿Etna Life Insurance Company, of Hartford, Conn., which was then and there a life insurance company lawfully doing business in the state of Texas, and of which J. N. Houston was the manager for the state of Texas; and. the said W. R. Meredith, as such agent and solicitor, did then and there collect premiums and was authorized to collect premiums for the said /Etna Life Insurance Company; and he, the said W. R. Meredith, as such agent and solicitor aforesaid, did then and there collect and receive from one Frank Posey the sum of $68 in current money of the United States of America, of the value of $68, as a premium on a policy of life insurance in said ¿Etna Life Insurance Company; and he, the said W. R. Meredith, did then and there unlawfully and fraudulently convert, misapply, and appropriate to his own use the said money so received and collected by him as such agent and solicitor as aforesaid, contrary to the instructions of and without the consent of the said ¿Etna Life Insurance Company, and contrary to the instructions and without the consent of the said J. N. Houston, who was then and there the manager for the state of Texas for said ¿Etna Life Insurance Company, which said money had theretofore come into the possession of and was under the care of the said W. R. Meredith by virtue of being such agent and solicitor for said ¿Etna Life Insurance Company, as aforesaid, against the peace and dignity of the state.”

This indictment was brought under article 691 of the Penal Code, which reads:

“Any insurance agent or solicitor who collects premiums for an insurance company lawfully doing business in this state and who embezzles or fraudulently converts or appropriates to his own use, or with intent to embezzle, takes, secretes or otherwise disposes of or fraudulently withholds, appropriates, lends, invests or otherwise uses or applies, any money or substitutes for money received by him as such agent or broker, contrary to the instructions or without the consent of the company, for or on account of which the same was received by him, shall be deemed guilty of theft of property of the value of the amount involved in either case and shall be punished accordingly.”

Appellant was agent of the ¿Etna Life Insurance Company, and collected from E. M. Posey the sum of $68.34, issuing to Posey the following receipt:

“Hondo, Tex., Oct. 15, 1914.
“Received from E. M. Posey, of Hondo, Texas, cash ($68.34) sixty-eight and sVioo dollars, to be applied to payment of the first premium under a policy of $21)00.00 this day applied for in the ROtna Life Insurance Company, when said policy is issued. It is hereby understood and agreed that insurance under said policy shall commence at the time it is issued, and that in case the application shall not be approved by the company, and a policy is not issued, the said payment shall be returned on surrender of this receipt within sixty days from the date hereof; and said company shall not be bound to any contract of insurance until a policy is issued.
“Not binding unless countersigned by a duly authorized agent of the company.
“Countersigned at Hondo, Tex., this 15th day of October 1914.
“[Signed] W. R. Meredith, Agent.
“C. E. Gilbert, Secretary.
“In every instance when the entire first premium is paid either in cash or by note, pending the issue of a policy, this form must be executed in duplicate, the applicant retaining the original, the duplicate being forwarded at once to the company.”

It was the appropriation of this money by appellant to his 'own use upon which the indictment is based. It is thus seen that appellant received this money as agent of the life insurance company upon the express condition that he would pay it to the company when the policy was issued, or, if no policy was issued on Posey’s application, he, as agent Of the company, would return it to Posey upon the surrender of the receipt in 60 days. Under the contract he had with the company, and the receipt he issued to Posey, he held this money in trust upon the given conditions named, and under the contract the life insurance company did not become absolute, owner 'of it until a policy was issued to Posey on the application, nor could it maintain suit for it until the happening of that condition. However, while Posey had a reversionary interest in the money, in case no policy was issued on the application, yet he had no control over it, nor right to demand its return until the application for insurance was refused by the company. Under such circumstances, it was an impossibility to allege the ownership of the money in any one individual, and the Legislature adopted the above statute to reach just such conditions, and under this statute it is unnecessary to allege in the indictment specifically who was the owner of the money, but to allege, as was done in this indictment, that as agent of the life insurance company appellant had collected from Posey the money as premium on a policy, and while holding it as such agent did fraudulently convert to his own use the money so held without the consent of the life insurance company. Appellant could not and would not have any personal interest in the money, at least, until the policy was issued, under the terms of his contract with the company, and the money would be in his hands merely as a trust fund; it to belong to the company in case it accepted the application for insurance and issued a policy thereon. Then, and not until then, would appellant be entitled to any of it as commission. In case no policy was issued on the application, he was entitled to and would receive no commission out of the money; but, by the terms of the contract under which he received the money, hé, as' agent of the company, bound himself to return all of the money so received to Posey, the applicant for insurance, and the Legislature had the authority to declare the conversion of the money to his own use by the person holding same under such circumstances to be an offense, and has done so.

The contention that the act of 1909 is unconstitutional and void, on the ground that the caption is insufficient, cannot be sustained. The caption is on page 192, Acts of 1909, it being chapter 108, and is, in effect, a codification of the laws governing and regulating the doing of a life insurance business in this state. The section defining this offense is section 51 of that act, and, among other tilings, the caption declares that it is intended “to regulate the business of such companies, and providing penalties for violations of the provisions of the act.”

The only other serious contention as to the validity of the indictment is based upon the contention that it failed to allege whether or not the ¿Etna Life Insurance Company was a joint-stock company, partnership, or corporation. This question has been frequently before this court, and at one time it was held that it was not necessary in any case to allege that the Injured party was a corporation. The case of Price v. State, 41 Tex. 215, was a case in which Price was charged with the theft of a bale of cotton from the Houston & Texas Central Railroad Company, and our Supreme Court, in an opinion by Chief Justice Roberts, held:

“It was not necessary to set out the charter in the indictment, or to allege it to be a chartered company otherwise than by name, as was done in this case.”

In the case of Holloway v. Memphis R. Co., 23 Tex. 467, 76 Am. Dec. 68, Chief Justice Wheeler disicusses at length when it is necessary to allege in the pleadings and prove that the plaintiff is a body corporate. He held that if the general laws of the state so declared, and the court in consequence must of necessity take judicial notice of it, it was not necessary to so allege and prove;! but if incorporated by private act it must be alleged to constitute good pleading and proven on the trial. Since its organization the question came before this court in a theft case, in the case of White v. State, 24 Tex. App. 234, 5 S. W. 859, 5 Am. St. Rep. 879, and the court discussed it at some length, and held:

“We are of the opinion that such allegation is requisite, and, to say the least of it, it is beyond doubt the better practice.”

Since the decision in that'case, it seems to have become the settled law in this state that, where the alleged injured party is a corporation, it must be alleged that it is a corporation, or words of equivalent import used. In Thurmond v. State, 30 Tex. App. 540, 17 S. W. 1098, an indictment was held defective because it failed to allege that the Lexington Ranch Company, from whom the property was stolen, was a corporation. See, also, Stallings v. State, 29 Tex. App. 220, 15 S. W. 716; Hutton v. State, 38 S. W. 209; Roby v. State, 41 Tex. Or. R. 152, 51 S. W. 1115.

On the other hand, it has become equally well settled that such rule is not applicable where the failure to allege it was a corporation was in regard to a corporation other than the defrauded one. In Reeseman v. State, 59 Tex. Cr. R. 430, 128 S. W. 1126, the question was again before the court, and the authorities were reviewed, and the distinction drawn when it is and when it is not necessary to allege in the indictment that the named company is a corporation, partnership, or joint-stock company. Under all the decisions of this court, it seems to be the settled rule that it was necessary to allege that the ¿Etna Life Insurance Company, as it was the company alleged to be defrauded, was a corporation, unless the statutes of this state give us judicial knowledge that it was an incorporated company. The insistence of the state is that the general statutes of this state do give this and all other courts judicial knowledge that only an incorporated company can legally do a life insurance business in this state, and when the indictment alleged that appellant was “an agent for the ¿Etna Life Insurance Company, which was then and there a life insurance company lawfully doing business in the state of Texas,” it was equivalent to an allegation that it was an incorporated company, for no company other than an incorporated company could lawfully do a life insurance business in this state; and chapter 108 of the Acts of the Thirty-First Legislature (Sess. Acts, p. 192) seems to support such contention. We are therefore of the opinion the court did not err in refusing to quash the indictment, nor in refusing to sustain the motion in arrest of judgment. The act in question is a general law, and this court and all courts must take judicial cognizance of its provisions. Article 463 of the Code of Criminal Procedure (1895) provides that “matters of which judicial notice is taken need not be stated in an indictment.” Por a citation of authorities, see section 373, White’s Ann. Code of Crim. Proc.

In two bills of exception appellant complains of the court permitting J. N. Houston, state agent of the ¿Etna Life Insurance Company, and F. M. Posey, to testify that he (Houston) had paid Posey back the $68.34 collected by appellant from Posey. Appellant himself testified that, when Mr. Posey called on him about the matter, he told him his contract with the company had been canceled, and he (Posey) “would have to take the matter up with Mr. Houston.” Under such circumstances, it was permissible for Posey to testify he did take it up with Mr, Houston, and received his money back.

Nor was there any error in permitting Mr. Houston to testify he and appellant entered into a contract, and identify the contract. It was dated at Austin, Tex., March 24, 1913, signed, “J. N. Houston, manager,” and indorsed:

“I hereby accept the foregoing appointment, subject to all its terms and conditions, W. R. Meredith, Agent.”
It is also indorsed:
“The ¿Etna Life Insurance Company hereby agrees to this appointment. [Signed] ¿Etna Life Insurance Company, by Frank Buslinell, Agency Secretary” — and dated April 14, 191,3.

This is the original contract under which appellant was working, was accepted by him,' and its terms are binding on him, and theire was no error in admitting it in evidence. i

As to the contract between Mr. Houston and tile ¿Etna Life Insurance Company, be was not, permitted to testify as to its contents, but only that he was state agent of the company. There was no error in permitting Mm to so testify. Of course, had he undertaken to testify as to the contents of the contract under which he was appointed state agent, then the contract would have been the best evidence. But the contents of the instrument were not sought to be proved; only the fact that he was state agent, and had entered into a contract with appellant, and then prove up the contract which appellant had entered into.

As the contract was in writing and specifically stipulated the amount of commission appellant was to receive upon each character of policy, there was no error in-refusing to admit oral testimony as to the amount of commission he was to receive. Appellant Mms'élf testified, “As to the commission allowed, it is defined in the contract.”

Nor was there any error in permitting Mr. Houston to testify that appellant had paid Mm no money on the Posey application. Appellant himself testified that he received the money from Mr. Posey, and issued Mm the receipt hereinbefore copied; that he had not paid the money to any one. He said:

“As to what I did with that money, I was ■waiting until the application, the examination, was finished. I had the money all the time. As to whether I still have the money, no; I have no recollection of what became of that particular money.”

Nor was there any error in permitting Mr. Houston to testify that he had not given appellant permission to appropriate the $68.34. Appellant, in the contract he entered into with Mr. Houston as manager of the ¿Etna Life Insurance Company, over Ms signature had agreed:

“That all moneys collected by you under the terms of this appointment shall constitute a trust fund, separate and distinct from your other funds and not subject in any case to personal or any other use by you, and that such moneys shall be immediately paid over to the said manager of said company.”

Mr. Houston was the manager named in that contract and under this contract it was permissible for the manager named in the contract to testify that appellant had not paid him the money, and he had not given appellant permission to appropriate it to Ms own use.

The evidence was ample to sustain the verdict, and the court did not err in so holding.

As appellant received the money from Posey in Ms capacity as agent of the insurance company, and issued to him the receipt hereinbefore copied, the fact that Posey failed to sign the second application, if he did do so, would not alter the conditions under which appellant held the money; and the court did not err in refusing to instruct the jury that if Posey did not sign the second application they would acquit appellant. Appellant had received the money as agent of the company under given conditions, and he, under no circumstances, would have the right to appropriate it to Ms own use.

If there was any testimony that appellant was holding the money until the ¿Etna Life Insurance Company had passed on Posey’s application for insurance, the charge presenting that issue should probably have been given. But there was no testimony presenting such issue. Appellant himself testified he did not have the money, he was not keeping it, and he did not know what he had done with that specific money. 1-Ie admitted he did not pay it to the insurance company or its manager, and did not give it back to Posey; and that he did not have it. Under such circumstances, there could be no question of his right to keep the money in his possession until Posey signed the application, and keep it in his possession to pay to the life insurance company when the policy was issued. He admitted he had not kept it, but spent it for some purpose he could not name. The facts in this case show that appellant received the money from Posey while agent of the company, and issued him a receipt as agent of the company. He never sent an application to the company to act on, and if, in fact, Posey did not sign the application (although Posey swears he did), this would not and could not alter the capacity in which appellant held the money, and, when the evidence goes further and shows that he had violated the trust and converted to Ms own use and benefit the money, there could be no question of good faith on appellant’s part, when both Mr. Houston and Mr. Posey testify they gave him no permission or authority to use the money for his own benefit. If he still had the money in his possession, and he contended he was holding it in good faith under Ms construction of the contract then such an issue might be in the case. But when he testifies he had spent the money without authority to do so from any one, the question of good faith in the retention of the money does not arise on the evidence.

Appellant also contends that under the contract he was entitled to retain 40 per cent, of the premiums collected as his commission, and if he did appropriate the $68.34, as he was entitled to 40 per cent, of the amount, if guilty of any offense, he would only be guilty of a misdemeanor, and the court should have so instructed the jury. If the condition had arisen whereby appellant was entitled to a commission, there would be merit in Ms contention. But under the contract, under the receipt, and under appellant’s own testimony, he became entitled to no commission until a policy had been issued and delivered to Mr. Posey. As appellant at no time ever sent an application of Posey for Msurance to the company, and he knew that no policy had been issued, he, under his contract, was entitled to no commission on this $08.34, and therefore, if he was guilty of any offense, it was a felony and not a misdemeanor, and the court did not err in so holding.

There was no question in the case of appellant and the insurance company being the “joint owners of the money collected by appellant from Posey.” The money was paid by Posey to appellant for a specific purpose, and he in his contract had agreed to hold it as a trust fund, to be paid to the company if a policy was issued on Posey’s application; if no policy was issued, to repay it to Posey. It is true, if the policy had been issued to Posey, he would then have been entitled to 40 per cent, of the amount as commission for his services. But as no application of Posey’s was ever sent to the company by appellant, he could and would under no circumstances be entitled to any part of the money, and the court did not err in refusing to submit- that issue to the jury.

We have carefully reviewed the exceptions to the charge of the court, and they nor neither of them present any error. They have been sufficiently discussed in disposing of the foregoing questions and do not necessitate nor require further discussion of the propositions.

The judgment is affirmed.
      <@s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes