
    TILLEY v. STATE.
    (No. 11027.)
    CJourt of Criminal Appeals of Texas.
    Feb. 15, 1928.
    1. Physicians and surgeons <&wkey;2 — Statute re- - quiring registration of authority to practice medicine may be aided by resort to civil statutes (Pen. Code, 1925, art. 739).
    Pen. Code 1925, art. 739, requiring registration of authority to practice medicine, may be aided by resort to civil statutes on same subject.
    2. Physicians and surgeons <&wkey;6(9) — Proof that defendant, charged with violating medical practice act, treated person with different surname from one alleged in information, held to constitute fatal variance (Pen. Code 1925, art. 739).
    In prosecution for violation of medical practice act (Pen. Code 1925, art. 739), proof that defendant treated W. Bradberry held to constitute fatal variance with information charging that he treated W. Baldwin, requiring reversal of conviction.
    Appeal from Hardeman County Court; J. E. Wiley, Judge.
    O. H. Tilley was conyicted of violation of the medical practice act, and he appeals.
    Reversed and remanded.
    Marshall & Perkins, of Quanah, for appellant.
    Black & Graves, R. M. Turpin, and A. A. Dawson, State’s Atty., all of Austin, for the State.
   HAWKINS, J.

Conviction is for violation of the medical practice act; punishment being a fine of $50 and imprisonment in the county jail for one day.

In various ways appellant attacked the law under which the prosecution was had, all based' upon the claim that article 739, P. C., is incomplete in itself, and cannot be aided by resort to the civil statutes upon the same subject. The exact point was decided against appellant’s contention in Compere v. State, 107 Tex. Cr. R. 95, 295 S. W. 614.

Only the second count in the information was submitted to the jury. It charged) that appellant treated Wyatt Baldwin. The proof showed that he treated Wyatt Brad-berry. There was a material variance in the proof and the allegation. It is perfectly apparent that it was the pleader’s purpose to charge a treatment of Wy.att Bradberry. Whatever his intention may have been, he in fact averred a treatment of one party, and proved the treatment of another. This necessarily demands a reversal.

The judgment is reversed, and the cause remanded. 
      <&wkey;Forhtlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     