Singh v. State

In this case there has been filed a motion for rehearing, and it is earnestly insisted that no one can be held liable under the medical practice Act unless he holds himself out as a doctor or physician. To give this construction to the statute would nullify subdivision 2 of section 13. That subdivision makes amenable to the provisions of that law any person who shall treat or offer to treat disease or disorder, mental or physical, by any system or method, or to effect cures thereof, directly or indirectly, for money or other compensation. It is thus seen that this portion does not read "any physician," but specifically states "any person." Any one who holds himself out as a physician or surgeon is liable under the law, whether he receives compensation or not, while one who does not so hold himself out must be shown to have received compensation either directly or indirectly. In this case the appellant may not have advertised himself as a physician, but he did advertise as shown in the original opinion, that he was capable of treating disease, and when it is shown he received compensation for his services, he would be liable to the penalties provided in the Act. Again, one who made no charge directly, but told all who applied for treatment that he "would receive free will offerings," would be receiving compensation within the purview of the law, for "indirectly" was used to cover just such evasions. However, in this case Mr. Ball testified that appellant treated his wife. About three days after he took his wife out of the St. Paul Sanitarium, he went to defendant's place of business on Ross Avenue, and appellant went with him to see his wife. That appellant told him he could treat her, and charged him thirty dollars to treat her, which sum he paid. This was receiving pay directly. Appellant himself did not take the stand, and no witness disputed the testimony of Mr. Ball, but it went before the jury uncontradicted. It is true appellant introduced some witnesses who said appellant treated them and made no direct charge, but stated he received only free will offerings. However, this did not contradict what Mr. Ball had testified to in his case, but if it could be so construed as hereinbefore stated, if one was treating disease and making no direct charge, yet he stated to other patients he would receive "free will offerings," this would be receiving compensation for his services indirectly. Collins v. State (U.S. Sup. Ct.), Feb. 19, 1912, advance sheets, p. 286.

Appellant complains that in the original opinion we did not pass on his motion to "strike from the record the original letterhead, printed circular and card" introduced in evidence and sent up with the record. Appellant does not question that they are the papers introduced in evidence, but says he had no notice of the request and was in no manner notified in regard thereto. The county attorney filed in the court below the following motion:

"Now comes the State of Texas acting by and through its duly elected and qualified county attorney and asks that the original papers marked Exhibit (A), (B) and (C) respectively, hereto attached and made a part of this motion, be sent up with the transcript to the Court of Criminal Appeals of the State of Texas, in the above entitled and mentioned cause, because (1) It is impossible for the Appellate Court to understand what appeared on these posters and postal card without seeing the originals; (2) The substance of the originals as given in the statement of facts is not clear; and (3) It is impossible to describe appellant, his robes, and his palace. These attached three papers were introduced in evidence upon the trial of this cause by the State. Wherefore the State of Texas prays that these papers be forwarded with the transcript herein to the Court of Criminal Appeals at Austin."

This motion was granted by the court and the original papers ordered sent to this court. They are identified as the papers introduced in the trial court. The trial court had the authority and power to make this order whenever he deemed it necessary or proper in fact, this court would have the authority to order them sent up if we deemed it necessary. This has always been the rule in this State, the only limitation being that they must be identified in a way this court will know that they were in fact the papers introduced in the trial court. (Morris v. State,43 Tex. 372.) However, if we did not consider the originals sent up, the printed matter on the letterhead, circular and card are copied in the statement of facts, but we hold that the trial court on its own motion or the application of either party, when it is deemed necessary, may order any original paper introduced in evidence sent to this court for our inspection. Of course, it should be identified in a way that we will know that it is the original paper introduced in evidence.

The motion for rehearing is overruled.

Overruled.