
    RUTHERFORD v. STATE.
    (No. 4113.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.)
    1. Physicians and Surgeons &wkey;36(ll) — Unlawfully Peacticing — Punishment.
    Under Pen. Code 1911, art. 756, providing that the punishment for unlawfully practicing medicine shall be by fine of not less than $50 nor more than $500, and by imprisonment for not exceeding six months, a jury finding accused guilty in a trial for violation of the law must assess both a fine and imprisonment within the legally fixed maximum and minimum.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Dec. Dig. <&wkey;>6(ll).]
    2. Physicians and Suegeons <&wkey;6(9) — Practicing Without License — Indictment.
    An indictment for practicing medicine unlawfully should allege either that accused was temporarily residing in the county in which the prosecution was brought, if such was the fact, and if not a fact, then if his residence was unknown, the indictment should charge that he had not recorded a certificate authorizing him to practice in the county, and also that he had no certificate authorizing him to practice.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 9; Dee. Dig. <&wkey; 6(9).]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    J. S. Rutherford was convicted of unlawfully practicing medicine, and appeals.
    Reversed and remanded.
    Ratliff & Spencer, of Decatur, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully practicing medicine, and his punishment assessed at a fine of $100.

Article 756 of the Penal Code provides that the punishment for unlawfully practicing medicine shall be by fine of not less than $50, nor more than $500, and by imprisonment in the county jail for any period of time not exceeding six months. It is thus seen that the Legislature has fixed some imprisonment at a minimum punishment the jury can assess. The punishment assessed must be always within the minimum and maximum fixed by law. This court, and no other court in this state, can assess a punishment that the law does not authorize. Fowler v. State, 9 Tex. App. 149; Jenkins v. State, 28 Tex. App. 86, 12 S. W. 411; Brown v. State, 50 Tex. Cr. R. 626, 99 S. W. 1001; Dillard v. State, 177 S. W. 107.

This will necessitate a reversal of the case, but there is one other question, we think, which should be mentioned. While the court did not err in overruling the motion to quash the indictment on the grounds presented in the motion, yet we think on another trial the indictment either should allege and the proof show that appellant was temporarily residing in Johnson county if such be the fact; or if this be not a fact, then, as it is alleged appellant’s residence is unknown, the indictment should not only allege that he had not recorded a certificate authorizing him to practice in Johnson county, but should further allege that he had no certificate authorizing him to practice, and proof that he had recorded no certificate would be prima facie proof that he had none by virtue of the statute.

The judgment is' reversed, and the cause remanded.  