Gay v. State , 79 Tex. Crim. 305 ( 1916 )

PRENDERGAST, Presiding Judge.

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 as a regular practitioner did prescribe for, visit professionally, and treat patients for diseases, towit: did visit, prescribe for and treat Mrs. H. J. Moore, Beulah Benfro (daughter of W. R. Benfro), and divers other persons to the affiant unknown without having first registered in the district clerk’s office of Comanche County, Texas, 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, Texas, 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 regis:_ tered 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. Brewron, M. D., .a member of the Medical Ex. Board of 25th 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. Iaac 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 medieaí 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 hoard of the district mentioned. Under no circumstances could it he 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 5733-5746, 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, Penal Code, 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, Penal Code, 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 vglid 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 anyone 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 hoard 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 University 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. Hnfortunately 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 hound by the law as well as he, and we can not exempt him as we otherwise might want to do. The said law has been held constitutional by the Hnited 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 ease, which is accordingly ordered.

A firmed.