Dankworth v. State ( 1911 )

At a former day of this term the judgment herein was affirmed. Appellant has filed a motion for a rehearing, in which he earnestly insists that the medical practice Act as passed by the Thirtieth Legislature, and which was approved on April 17, 1907, did not become effective until one year and ninety days after the adjournment of the Legislature on April 12, 1907, and cites in support thereof sections 6 and 15 of said Act, and inasmuch as the offense is charged against appellant as of date May 15, 1908, or only one year and thirty-three days after the passage of the Act, his contention is there was no law in force at that time under which he could be prosecuted. We do not think such contention is the proper or legitimate conclusion to be placed on said Act. The Act itself became effective within ninety days after the adjournment of the Legislature, on the 12th day of July, 1907. In the Act, in section 6, it is provided:

"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," etc.

If the defendant in this case held a diploma from a reputable or legal college of medicine, or a license issued by previous examining board, it was a matter peculiarly within his knowledge, and if he relied on this as a defense he should have made this proof. The record in this case instead of showing such defense, shows affirmatively to the contrary, the defendant testifying: "I never procured license to practice medicine. I have not filed for registration a license to practice medicine in Bell County or any other county." Laws in force prior to the passage of this Act required the diploma or license of a physician to be filed and recorded in the office of the clerk of the District Court in the county in which one proposed to practice, and inasmuch as defendant testified that he never filed in any county a license to practice medicine, the exceptions in the Act can not avail him. In line with the holdings of this court may be also cited the case of People v. Nyce, 34 Hun (N.Y.), 298, wherein it is held:

"On the trial the defendant admitted the fact that he practiced medicine at the time and place charged in the indictment; whereupon the district attorney rested the case. The defendant then moved for his discharge, on the ground that mere proof that he practiced medicine was insufficient to convict him of so practicing without a license. The court denied the motion. To practice medicine without a license or diploma, issued or granted to the practitioner, as the law requires, is declared a misdemeanor and is punishable as such. It being then proved or admitted that the defendant practiced medicine it was incumbent on him, in order to avoid the penalty imposed for the alleged unlawful act, to show that he did so under the protection of a license or diploma. The burden of proof was on him to show his justification. It has been so decided in many instances in analogous cases where persons were charged with selling liquor without license so to do. (Potter v. Deyo, 19 Wend., 361; The People v. Quant, 2 Park. C.R., 410; The Mayor v. Mason, 1 Abb. Pr., 344.)"

In this case also is assailed the constitutionality of this Act. Our Constitution commands the Legislature to enact laws regulating the practice of medicine, and the question has been so fully discussed in the opinions of this court heretofore rendered, we do not deem it necessary here to discuss it, but the holding of this court is not only held valid by reason of the constitutional provision, but it is held by the great weight of authority that this power may be exercised under the police power of a State. In the case of Williams v. State, 121 Ill. 87, it is held: "It is the common exercise of legislative power to prescribe regulations for securing the admission of qualified persons to professions and callings demanding special skill, and nowhere is this undoubted exercise of the police power of the State more wise or salutary, and more imperiously called for, than in the practice of medicine. It concerns the preservation and the lives of the people." See also State v. Medical Examining Board, 32 Minn. 325; West Virginia v. Dent, 25 W. Va. 1; Thompson v. State, 15 Wend., 395; Hewitt v. Charier, 16 Pick., 395; State v. Hale, 15 Mo., 407; Bibber v. Simpson, 59 Me. 181.

The motion for rehearing is overruled.

Overruled.