
    B. B. Pettit v. The State.
    
      No. 3206.
    
    
      Decided December 7.
    
    Illegal Practice of Medicine—Mistake of Pact—Charge of the Court.—Under the proof ill this case the trial court erred in refusing to instruct the jury, in effect, that if the defendant at the time he practiced medicine, as charged against him in the information, labored under the mistake that his certificate had been filed for record in Van Zandt County, and if said mistake did not arise from want of proper care on his-part, he was entitled to be acquitted.
    Appeal from the County Court of Van Zandt. Tried below before Hon. John S. Spinks, County Judge.
    This conviction was for illegally practicing medicine, and the penalty assessed against the appellant was a fine of fifty dollars.
    The proof shows, in substance, that before practicing as a “ specialist ”' in medicine at the town of Wills Point, in Van Zandt County, the appellant met R. M. Lively, who informed him that he was going that morning to the town of Canton, the county seat of Van Zandt County. Thereupon the defendant gave Lively his certificate, authorizing him to practice-medicine, and money with which to pay the fee for the recording of the same. Lively took the certificate and the fee, and promised to have-the certificate recorded upon his arrival in Canton. Lively, however, was taken sick, and did not go to Canton on that day, but as soon as he-did go to Canton he delivered the certificate to the county clerk for registration, together with the registration fee. Defendant did not hear of Lively’s sickness, or that he failed to go to Canton, until late in the evening of the day on which he was to have gone. Meanwhile he had performed the practice involved in this prosecution.
    
      Russell & Yantis, for appellant.
    
      W. L. Davidson, Assistant Attorney-General, for the State.
   Willson, Judge.

In view of the evidence adduced the jury should have been instructed in relation to a mistake of fact. If the defendant, at the time he practiced medicine as charged against him, labored under the mistake that his certificate had been filed for record in Van Zandt County, and if said mistake did not arise from a want of proper care on his part, he was entitled to be acquitted. Penal Code, arts. 45 and 46.' This issue was clearly presented by the evidence. The trial court did not submit it to the jury, and refused special instructions thereon requested by defendant, and defendant reserved proper bills of exception to the errors.

The judgment is reversed and the cause is remanded.

Reversed and Remanded.

Judges all present and concurring.  