Larson v. State

At a former term of this court this appeal was dismissed because of a defective recognizance. Appellant asks for a rehearing and accompanies his request by a certified copy of legal recognizance entered into by him appealing this case. The appeal will be reinstated and the case discussed on its merits.

Appellant testified in his own behalf on the trial that he did not practice medicine nor hold himself out as a practitioner thereof, but said he was an electrical therapeutic, and admitted that as such he treated people afflicted with bodily ills and charged them for his services in such regard. He said he was a graduate of the Pennsylvania College of Optics and of the Des Moines School of Orificial Surgery, but admitted that he had never been examined by the State Board of Medical Examiners of Texas, and further that he had never filed with the district clerk of Jefferson County any license or certificate issued by said board.

That appellant was a practitioner of medicine under our laws as construed by the opinions of this court, seems clear. Art. 255, Vernon's P. C.; Collins v. State, 57 Tex.Crim. Rep.; Collins v. State, 223 U.S. 288; Milling v. State, 150 S.W. 434; Lewis v. State, 155 S.W. 523; Singh v. State, 146 S.W. 891; Hicks v. State, 88 Tex.Crim. Rep.; Black v. State, 86 Tex. Crim. 254.

As such practitioner he is required by the terms of Art. 750, Vernon's P. C., to register with the district clerk a certificate issued to him by the State Board of Medical Examiners. This he has not done and was therefore penally liable for such failure, unless we respond to his contention that the law under which he was convicted is unconstitutional. This we cannot do. If we understand appellant's contention his attack is based on the proposition that Art. 753, Vernon's P. C., defining what is meant by a bona fide reputable medical school, and stating that same is one "Whose entrance requirements and courses of instruction are as high as those adopted by the better class of medical schools of the United States, whose courses of instruction shall embrace not less than four terms of five months each," is indefinite, uncertain and also arbitrary. We are not able to say that this sets up an arbitrary discrimination between schools, or that it is a character of classification which the legislature cannot make. We see nothing in Smith v. Texas, 233 U.S. 630, contrary to this view. The right of free contract was there involved and the Supreme Court of the United States said same could not be abridged by an Act of the legislature forbidding the employment of one as a passenger conductor until he had served as a freight conductor or brakeman for two years. The distinction between the statute here involved and the one thus held unconstitutional by our Supreme Court, seems obvious.

The constitutionality of the Act under consideration has been attacked in many cases and as often sustained. Authorities cited under Art. 750, Vernon's P. C. We see no reason for writing further on the subject.

There are a number of bills of exception, many of which complain of the rejection of proof that appellant benefited persons by his treatment. Such evidence could in nowise militate against the question of guilt herein. Nor would proof of the fact that he had filed a diploma with the district clerk affect the question of his guilt when charged with failing to file a certificate issued by the State Board of Medical Examiners of this state.

Bill of exceptions No. 5 presents no error as qualified by the court in a statement to the effect that appellant was offering the same character of testimony regarding his beneficial treatment of patients, and that the court indicated that he would hold such further proof unnecessary and inadmissible.

Bills of exception No. 6 to No. 21, inclusive, present the action of appellant in selecting each ground of the motion for new trial and incorporating same into a bill of exceptions which he has filed. We know of no such rule of practice. The motion for new trial merely complained of the rulings of the court and the incorrectness of his judgment, and evidences no matters of newly discovered evidence, misconduct of the jury or other matters not pertaining to the regular trial of the case. None of the bills manifest any error. There was a special charge, but on same there is no notation of whether it was refused or given, or when same was presented, nor is there a bill of exceptions regarding it.

The record being devoid of any showing of error, the judgment will be affirmed.

Affirmed.