Frey v. State

ON state’s motion for rehearing.

GRAVES, Judge.

The State has filed a motion herein alleging that we were in error in our original opinion wherein we held that it was - necessary that the complaint ..and information should have contained an allegation that appellant’s advertisement was addressed to the general public. We think that the above-quoted Section 3 of Article 754a, P. C., contemplates, as well as declares, that one who advertises to the general public to do certain things therein set forth is regarded as practising dentistry, and if he does such things, he may be punished therefor, as is shown in Art. 754, P. C. The punitive article does not set forth the unlawful acts, but merely says in substance that “any person who violates any provision of this chapter shall be fined,” etc. The provision of this chapter under which this prosecution is based requires that the person thus regarded as practising dentistry shall advertise to deliver to the general public certain services upon his part. We do not regard the allegation relative to the general public as an exception to the rule, but as an integral part of the denounced offense. We think this position is authorized by the opinion in- the case of Baker v. State, 106 S. W. (2d) 308, from which we quote as follows:

“From what we have said above, and as far as we have been able to ascertain, our courts have uniformly held that when the Legislature sees fit to create exceptions to the general penal provisions of a statute, if such exceptions be placed in a separate section or article from the one containing the definition of the offense, or if they be not such as to be essential to the definition of the offense, it will not be necessary to negative such exceptions in the indictment charging such offense. This rule seems uniformly adhered to even though the exceptions referred to had, in some former enactment, been written into the enacting clause of the offense in such way as to cause this court to hold it necessary for same to be negatived in the indictment charging such offense.

“We feel impelled to say that if there be possibly an exception to the rule above mentioned, it must be when the exception or omission, as in the Hewitt case (25 Tex. 722), is of the very gist of the offense, and then same would have to be negatived in the indictment, no matter where its location in the statute, and the Legislature in such latter case would be powerless to enact a statute making it unnecessary to negative such an exception, and this, as stated, whether such exception be in the article defining the offense or be in a separate article. In other words, if the thing forbidden by the particular statute under consideration could not be proved, or the case could not be made out without proof of the so-called exception or omission, then said exception would be a necessary element of the offense, and its existence should be negatived in the indictment and find support in proof.”

See also Howland v. State, 151 S. W. (2d) 601, and cases there cited.

We feel that our original opinion correctly states the law herein, and therefore overrule the State’s motion for a rehearing.

HAWKINS, Presiding Judge, absent.