Teem v. State

183 S.W. 1144, 79 Tex. Crim. 285, 1916 Tex. Crim. App. LEXIS 118

• Court: Court of Criminal Appeals of Texas
• Decided: March 1, 1916
• Docket: No. 3933.
• Status: Published

Opinions

PRENDERGAST, Presiding Judge.

Appellant was convicted of illegally practicing medicine, and his punishment assessed at a fine of $100 and six days confinement in jail.

The record is quite voluminous. In addition, appellant has a printed ibrief of more than 100 pages. The brief, however, is largely made 'up of copies from the record. We have given the record and brief, as well as the oral arguments of the appellant’s able attorneys when the -cause was submitted, due and full consideration.

The indictment is substantially, if not literally in the form laid down in Judge Willson’s Crim. Forms (4th ed.), No. 343, page 187, and also follows the statute prescribing the offense, and is valid, as has many times been held by this court. The trial judge correctly overruled appellant’s motion in arrest of judgment.

Our Constitution (sec. 31, art. 16) is: “The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this '.State and to punish persons for malpractice, but no preference shall .ever be given by law to any schools of medicine.”

By an Act approved April 17, 1907, page 224, the Legislature, in . obedience to said constitutional provision and in compliance therewith, enacted a comprehensive law on the subject. The different sections of that Act are embraced in the Revised Civil Statutes as articles 5733 to 5746, and most of them — all of which are necessary — also in our Penal Code, as articles 750 to 756. This Act of the Legislature has expressly been held constitutional by the United States Supreme Court in Collins v. The State of Texas, 223 U. S., 288, 56 L. Ed.. 439. 32 S. Ct.. 286, and many times by the courts of this State.

However, no attack in this case is made on the constitutionality of said Act, and no Federal question is raised, and, of course, we decide no Federal question on this appeal.

Article 750, Penal Code, is: “It shall he unlawful for anyone to practice medicine in any of its branches, upon human beings, who has not registered in the district clerk’s office of the county in which he resides, his authority (license) for so practicing,” etc., and (art. 756, P. C.) punished as prescribed, if convicted.

The law provides for a medical board of eleven men, learned in medicine, hut no school shall have a majority on the board. (R. S., art. 5733.) This article also prescribes their otherAequisites. Revised Statutes, article 5739 (amended in 1915), requires all applicants for license to practice medicine to successfully pass an examination before said board, and prescribes the requisites of such applicants. Revised Statutes, article 5741, enumerates the subjects of examination and requires “all examinations shall be conducted in such manner as shall he entirely fair and impartial to all individuals and every school of medicine.” Penal Code, article 754, says: “Nothing in this law shall be construed as to discriminate against any particular school or system of medical practice.”

Penal Code, article 755, is: “Any person shall be regarded as practicing medicine within the meaning of this Act:

“(1) Who shall publicly profess to be a physician or surgeon and shall treat, or offer to treat, any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof.

“(2) Or who shall treat, or offer to treat, any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method or to effect cures thereof, and charge therefor, directly or indirectly, money or other compensation.”

Appellant contends, as we understand, in substance, that he is not a practitioner of medicine at all. That what he did is not embraced within the purview of said medical practice Act, nor embraced by any of the provisions thereof. That - what he did was merely to practice a new science, whereby he would “remove the cause of the trouble from a person, and the vital forces of his body will assert themselves and heal him,” the patient; and that, therefore, he did not have to have or. record any license.

We will not quote all, nor give in full, the testimony, hut will give the substance thereof as applicable herein.

R. L. Haney testified: That he kept and drove- appellant’s auto mobile for him and “hauled patients to and from his office, and sometimes I go to the house and get patients, or to the railroad station. I do this under Dr. Teem’s direction. He is a chiropractic doctor. There is printed on his automobile these words: cDr. David B. Teem, 528 South Elm.’ I have been to his office when there were patients there.”

E. B. Hanna testified: That about July 1, 1915, he had a sick boy. He heard that defendant adjusted people, and this boy was in bad shape. He had other doctors examine him also. That he phoned appellant to come and see his boy. That he came after dark the first time to see him. That, when he came, he got out his table, fixed it up, put the boy on it and went to work on him. He put him on a table, rubbed his back and neck and up and down his spine. I called the doctor and'paid him for adjusting the boy. He called it “adjusting.” He said the human body was like machinery. He would adjust it and get it in shape, and then nature would do the rest.

B. M. Cannon testified: That he was an old man, eighty years old. That, when appellant began adjusting him, he was almost blind, but now he could see to read. That, when he first saw and had appellant to work on him, appellant told him he was constipated and was hurt in the back; that his spine had been hurt. He said I had a displacement in'my body and that he could adjust that displacement, and that was all he did or was responsible for. He said he could adjust the displacement he found in my body, and nature would do the balance. The witness then described how appellant worked on him. “He just went to work on me and rubbed down my spinal column, worked on my face and eye, and I got results from it. In adjusting me, he commenced on my neck and went down my spinal column. He adjusted me from my head down, including my spine. He rubbed over my face and around my eye, sometimes both eyes. He commenced on my neck, on the muscles that lead to my eye; then over my face, principally around my neck and eye, rubbed the edge of the eye. His principal work was on the face, back and neck. In adjusting me, he used nothing except his hands. That is what I paid him for.” The witness then stated that appellant worked on him many times. He manipulated with his hands. He was adjusting me for my eye. The witness further testified that appellant gave him no medicine, nothing to eat, drink, smell or feel. That, during the time appellant worked on him, he gave him different tickets for $20 each, which $20 he paid him each time, and the ticket recites that it entitled him to one adjustment for each uncanceled number in the margin of the card by the Chiropractic Adjustry, and signed his name. That he never called his work treating him.

Mrs. Bitta Barron testified: That she lived at Van Alstyne. “He first went to Van Alstyne to treat me; then I have been coming here to Sherman. When he began adjusting me, I ivas suffering from locked bowels. I was in a critical condition when he came. I told him my side was hurting. I don’t remember that he made any examination of my body. He found these strictures; and, when he started, of course he worked on that point. ' He told me he would give me an adjustment. He commenced at my neck and went down my spine. He adjusted the place that was hurting most on either side of the abdomen. He used the word ‘adjust’ altogether; never the word ‘treat.’ Dr. Teem said there was a displacement in my body that needed physical adjustment. He told me that he did not treat diseases; that he did not offer to cure or heal, but he did say to me that, when he found a displacement in my body, he adjusted it as nearly as he could”; that he regarded the body as a machine and adjusted it as a machine. He did not say that he would treat disease but that, when he adjusted the body, it would be normal. In other words, he did not deal with disease nor propose to cure, but to adjust into proper position a displacement in the body. That she paid him for the work he did iipon her.

' The district clerk of Grayson County testified that appellant had no certificate or license to practice medicine recorded in Grayson County. Appellant concedes that he had no license whatever. He was shown to be a resident of Grayson County and had been for some time.

Appellant himself did not testify. He introduced three witnesses only. Neither of them in any way disputed said testimony introduced by the State.

One, R L. Haney, testified that appellant had signs placed on the front of his residence, which was his office, between the window and door. One read: “David B. Teem, Chiropractor.” The other was:

“To whom it may concern: I am not a physician, I am not a surgeon, I do not treat disease or deformity of any kind, I do not and will not offer to treat any disease or disorder, mental or physical, or any physical deformity ór injury, by any system or method. I do not offer to effect cures, I do not treat, and will not and can not treat disease or deformity or injury of any kind.

“I do propose: The person giving full co-operation that we will remove the cause of the trouble and the vital forces in his body will assert themselves and heal him, I propose to adjust, and not treat. Get your machinery fixed and nature will do the treating.”

He then introduced Dr. John C. Hubbard, a resident of Oklahoma City, Oklahoma. It seems he introduced Dr. Hubbard to explain and show, in a general way, what a chiropractic did and did not do. He did not claim to know what appellant did or said as shown by the other witnesses. He testified on direct examination, then on cross-examination, then back and forth repeatedly on redirect and recross-examinatiori. We do not propose to give his testimony in full, but different portions of it only.

Dr. Hubbard testified on direct examination: That he was a chiropractor and had been for five years. That he was a graduate of Wichita and Carver colleges, and had taken post-graduate courses. That he was a teacher in the Carver Chiropractic College of Oklahoma City. That appellant himself had attended that college two years or more and had graduated therein, said college issuing him a diploma con ferring upon him the degree of Doctor of Chiropractic, which carried with it the dignity, honor, and privileges of a chiropractor. This diploma was introduced, it being dated in June, 1912, and signed by the president and various professors of said college. Some colleges required a three years course; others, only two. He did not tell what said colleges taught. He said: “Adjusting, as chiropractors do, may or may not have to do with a diseased or disordered part. From the medical standpoint, a disease or disorder represents a certain condition of parts or certain conditions in organs. It does not represent displacement but tlje pathology. The chiropractor replaces displacements by adjusting, without necessarily having knowledge of what constitutes disease. His sole object in replacing is to replace its relationship with the component parts or segments of the body. Chiropractors do not prescribe for or undertake to cure or heal dipease,” then, on cross-examination, saying, they lay special stress on outside structure, which is done with the hands of the operator. “The science teaches us that the structure of the body, if it is displaced, needs replacing from a mechanical standpoint, and most of them constitute displacement in the spine. With the hands we replace or readjust displacement in the spine, bring it back to its normal condition.” “Q. Tf you were to put it back in its place (speaking of a dislocated limb), you would be adjusting it, wouldn’t you?’ A. ‘Yes, sir.’” On redirect examination, he said: “The chiropractor does not deal with disease, but merely with displacements in the physical or skeletal frame and organs of the body.” On recross-examination, he said: “If a man should come to me — bring a son or daughter afflicted with mental trouble, I would not treat for that trouble. If I found the body out of order, I would properly replace the parts. This probably would and it probably would not relieve the mental trouble. I would simply do the work of replacing the structures, if necessary, so as to get the displaced parts into order. If a man comes to me suffering, I would go to work to replace the displaced parts. I would not think of the mental phase of it; that has nothing to do with our work. I would not attempt to work on a person unless I should think the work would do good. If I were called to see a person suffering with typhoid, I would examine to see; and, if adjusting be necessary, would work on the parts to correct them. With proper adjusting, the fever would probably abate.” “From a professional standpoint, chiropractors know nothing about pain. They always have an object in replacing the displaced parts; Our object is to replace the parts so that the body will be in its right place. If a man should come to me suffering with pain, I would readjust the body, and it -would relieve it; no doubt.” “I would do what the condition represents to me. I would look for-a displacement.” Again, speaking of typhoid, he said: “The chiropractor would look to see what adjusting the body needed and to replace the displacement with the idea that, when the body is put in proper shape, the typhoid will disappear.” “Q. ‘If a person were to come to you suffering, you would not treat the fever, but look for displacements in the body, and you would adjust the person’s body as nearly as you could, with the idea if that was accurately done, the fever would disappear ?’ A. ‘Fever always disappears when a proper adjusting is made. If we replace the-displaced parts, it places the body in its normal relation.’ Q. ‘You would do that with the idea of a person getting well. You would put the body in a perfect shape. Then the person would get well and nature would cause it to throw off the fever?’ A. ‘Yes, sir.’ Q. ‘Pneumonia — you would adjust that in order that nature might restore the man to his former condition, would you?’ A. ‘If we found a case of pneumonia, we would not consider it as pneumonia. We would adjust his body as nearly as we could, with the idea that nature would correct the trouble.”’ Then, on redirect examination again, he said: “As chiropractors, we have no concern about disease. We adjust displacements in people who are sick and in people who are well. That is all we attempt to do. . . . We remove the cause occasioned by displacement with the idea that the conditions caused thereby will disappear.”

Appellant then introduced Hr. Bush, who testified about some of appellant’s signs, unnecessary to state. The State introduced no further testimony.

We think there can be no sort of doubt but that this testimony showed, as charged in the indictment, that appellant unlawfully practiced medicine as denounced by the law, and no honest jury could have done otherwise than have found him guilty.

It may be that the colleges, from one of which appellant has a diploma, teach a new science of how to relieve “human beings” of some of the-disorders or ills of this life, and effect cures thereof, but, if so, the evidence clearly demonstrates that the practice of it by appellant, whatever it be named or called, as shown in this case, without a license, and proper record of it, violated both the spirit and the letter of our law. The fact that he studiously abstained from calling his work upon patients á “treatment” of them, but instead an “adjustment of a displacement” of them, can have no possible effect to relieve him of the penalties of the law which he violated. No sort of substitution of other words for those used in the statute or refraining from using them, can change the law. The fact that, in his advertisements posted on his home and office, and to his patients, he stated specifically that he did not profess to do, nor do, the things that the statute denounces, yet, when it is unquestionably shown that he did do those very things, can not possibly have the effect to put him without the pale of the law.

His assertions in his advertisements, and to his patients, that he was not a doctor or surgeon, and that he did not treat disease, etc., was clearly an attempt to evade the law, and should have deceived no-one. No other practitioner of any other school of medicine, whether he be called doctor, surgeon or otherwise, or whatever his method or system, treats the disease, etc., as contradistinguished from the patient suffering from the disease, etc. They each and all treat the patient in order to relieve him from the disease and suffering, and thereby assist nature to heal, him, as appellant is shown to have done the several persons — his patients — who testified herein. Each practitioner may have a different system or method, but the object and purpose of each is to accomplish the same result. In this case, appellant, without contradiction, is shown to have treated, or “adjusted,” if he prefers to so call it, Mr. Hanna’s sick boy who was in bad .shape, and Mr. Cannon’s sore and afflicted eye and a displacement in his spine or body, and Mrs. Barron’s locked bowels, and strictures and hurting in her sides from which she was in a low, critical condition when he began treating or working on her, or “adjusting” her, whichever it may be called or termed, and charged each of them therefor and was paid by each.

We can see no possible reason, and none is shown in this record, why appellant should be exempted from procuring and registering his license to practice, when every other practitioner from every other school is required to do so. His school of medicine, or science, or practice, or adjustment, or whatever he may choose to call it, is clearly embraced by' our law, as prohibiting him from practicing it on human beings for pay, without first procuring and having a license duly recorded. If he desires to practice his profession, and does so, he should first procure and record his license to do so under the law, as every other practitioner is required to do, and does; and, if he refuses to do this, then he must suffer the penalty of his own acts.

As said by the Hnited States Supreme Court of Dr. Collins, who practiced osteopathy only, in Collins v. State of Texas, supra, so we say of Dr. Teem, “it is true he does not administer drugs, but he practices what at least purports to be the healing art. The State constitutionally may prescribe conditions to such practice considered by it to be necessary or useful to secure competency in those wlm follow it. . . . Whatever may be the osteopathic (chiropractic) dislike of medicines, neither the school, nor appellant, suffers a constitutional (or statutory) wrong if his place of tuition is called a medical school (or he, a medical practitioner) by the Act for the purpose of showing that it (or he) satisfies the statutory requirements.” Again: “An osteopath professes ( — and we think this record unquestionably also shows, that appellant, a chiropractor, does, too — ) to help certain ailments by scientific manipulation affecting the nerve centers. It is intelligible, therefore, that, the State should require of him a scientific train ■ ing,” and require him, as it does of all others who practice the healing art, or science, to procure and record a license to do so.

“Ho -one has an inalienable right to follow the occupation of practicing medicine or treating disease for pay any more than one has the inalienable rigjrt to follow the occupation of practicing law for pay, or to practice dentistry, or any other occupation that requires and demands a certain amount of what might be termed technical knowledge of the subject which he represents he is competent to practice.” (Lewis v. State, 69 Texas Crim. Rep., 593, 155 S. W. Rep., 523.)

This court has in so many cases construed our law, and uniformly held appellants to be embraced within its provisions, under circumstances and facts, so similar to this case, we think it altogether useless to further cite or discuss them. Many of them are noted under the several articles of said Revised Statutes and Penal Code, in Vernon’s annotated revisions, where they can readily be consulted.

Appellant, requested quite a number of special charges. We see no necessity of taking these up separately and discussing them. Wot one of them should have been given, even if appellant has preserved the point in such a way that we would be authorized to review them. Byrd v. State, 69 Texas Crim. Rep.. 35; Ryan v. State, 64 Texas Crim. Rep., 628.

He has some objections to different paragraphs of the court’s charge. It is unnecessary to mention but one of these, which is his objection to the fifth subdivision, as none of the others point out any error, even if he has preserved the matter in such a way as to authorize this court to review them.

The fifth subdivision is: “If, on the other hand, you believe from the evidence that the defendant on or about the time alleged in the indictment did not practice medicine in the State of Texas in violation of the provisions of the law herein given you, you will find him not guilty and so say by your verdict.”

His objection to that charge was “because it imposes upon him the burden of establishing his innocence.” His bill merely quotes said subdivision, and then that he excepted to it on the ground quoted, and his bill merely states these facts. He asked no charge covering the point to which he objected.

The statute (P. C., art. 739) does not require the county judge to give any charge in misdemeanor cases. Of course, when he does, it ought to be a correct charge, but, in construing this statute, this court and the Supreme Court, when it had criminal jurisdiction, uniformly and in a great number of cases have held that the only way this court is authorized to review objections to the charge of the court of either omission or commission, is to seasonably object thereto, stating the specific objections; then preserve his bill properly to overruling such objections, if they are not met. This alone, however, is not sufficient to preserve the question for review of this court. He must go further and specially request in writing a correct charge, covering the error or omission; and, if the court refuses to give his special charge, take his bill thereto. In this case, while objecting to the charge, he did not request any correct charge on the subject; and, therefore, under the uuiform decisions, this question is not presented in a way that would authorize this court to review it. Brown v. State, 73 Texas Crim. Rep., 574; Hughes v. State, 67 Texas Crim. Rep., 333, 149 S. W. Rep., 173; Golden v. State, 66 Texas Crim. Rep., 262, 146 S. W. Rep., 945; Perkins v. State,v 65 Texas Crim.. Rep., 311, 144 S. W. Rep., 241; Giles v. State, 66 Texas Crim. Rep., 638, 148 S. W. Rep., 317; Healer v. State, 66 Texas Crim. Rep., 140, 145 S. W. Rep., 353. Additional and earlier cases are cited in the opinions oí each of the cases which we have just above cited.

Appellant has another bill to a part of the argument of Judge Wolfe, who represented the State in connection with the prosecuting officer. This bill on its face shows that it was in reply -to appellant’s argument. It being in reply and brought out and made proper hy appellant’s argument, that of itself would show no error. But, in addition, Judge Wolfe unquestionably had the right to make the argument and statement in this case that the bill complains of.

We have not thought it necessary to quote the said medical Act in full. We have cited the original Act, and the several sections thereof, as contained in our Revised Penal Code and Revised Civil Statutes.

Ho other question is raised requiring, discussion.

The judgment will he affirmed.

Affirmed.