Newman v. State

134 S.W. 688, 61 Tex. Crim. 338, 1911 Tex. Crim. App. LEXIS 94

• Court: Court of Criminal Appeals of Texas
• Decided: January 18, 1911
• Docket: No. 311.
• Status: Published

Opinions

HARPER, Judge.

—In this case appellant was convicted in the County Court of Kendall County of the offense of unlawfully en gaging in the practice of medicine without first having registered and filed for record the certificate' required, and his punishment assessed at a fine of $100 and five days imprisonment in the county jail.

1. Appellant’s first assignment of error complains of the action of the court in overruling his motion to quash the indictment. An indictment in terms exactly similar to this was passed on by this court in Newman v. State, 58 Texas Crim. Rep., 223, 124 S. W. Rep., 956, and held to be a valid indictment.

2. In his second assignment of error appellant insists that one who practices as a “masseur” is not guilty of any offense under the Act of the Thirtieth Legislature, pp. 224 to 228, and that the facts are insufficient to sustain the judgment. Whether or not the facts are sufficient was submitted to the jury trying the cause under a proper charge, and the jury find against appellant’s contention. The court, at the instance of appellant, gave the two following special charges:

(1) “If you find from the evidence that the defendant did not charge for his services as a masseur, or for treatment by any method or system, and receive pay for such treatment between the 27th day of May, 1909, and the 21st day of June, 1909, you will acquit him, and say by your verdict, we, the jury, find the defendant.not guilty,” and

(2) “You are instructed that a masseur in his particular sphere of labor is not required to secure a certificate authorizing him to practice medicine, and if you believe from the evidence that defendant as a masseur practiced within the particular sphere of masseurs you will acquit him.”

These charges submit to the jury fairly the defense of appellant, and the case of Newman v. State, 58 Texas Crim. Rep., 223, 124 S. W. Rep., 956, so fully presents and discusses the question of when one who uses the massage treatment for disease would become liable, we deem it unnecessary to enter into an extended discussion of the question, but merely refer to that decision.

The judgment is affirmed.

Affirmed.