
    GERMANY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 29, 1911.
    On Motion for Rehearing, May 10, 1911.)
    1. Physicians and Sub&eons .(§ 2) — Statu-TOBY PBOVISIONS — CONSTITUTIONALITY — “Pbaoticing Medicine.”
    Acts 30th Leg. c. 123, providing, that it shall be unlawful for any one to practice medicine without a certificate from the state medical board, and that to obtain a certificate one must be examined as to his knowledge- of various medical subjects, and section 13, providing that a person who shall publicly profess to be a physician or surgeon, and offer to treat any disease by any’ system, or who shall offer to treat any disease by any method for compensation, shall be regarded as practicing medicine is not unconstitutional in discriminating against the practice of 'the masseur treatment, in failing to provide any board or authority to whom one can apply for license to practice such treatment, for a license to practice that treatment can be obtained from the state medical board, and the condition that an applicant have certain medical knowledge is not a discrimination against the, practice of the masseur treatment, but a valid exercise of police, power. .
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 2; Dec. Dig. § 2.
    
    2. Ceiminal Law (§ 369) — Evidence—Otheb Obbenses.
    In a prosecution for practicing medicine without authority in violation of Acts 30th Leg. c. 123, evidence that defendant treated persons other than the person named in the information was admissible.
    For other definitions, see Words and Phrases, vol. 6, pp. 5488-5491; vol. 8, p. 7758.]
    [Ed. Note. — For- other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    3. Physicians and Suegeons (§ 6) — Pbac-ticing Without License — Ceiminal Peose-cutio n — Evidence .
    In a prosecution of a physician for practicing without a license in violation of Acts 30th Leg. c. 123, evidence of advertisements issued by defendant for the purpose,of obtaining practice was admissible.
    [Ed.. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.]
    4. Ceiminal Law (§ 406) — Evidence—Dec-LAEATION BY DEPENDANT.
    In a prosecution for practicing as a physician without a license in. violation of Acts 30th Leg. c. 123, evidence that defendant made representations to the father of the prosecuting witness and to others that he could cure certain diseases, and had cured them, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 894M527; Dec. Dig- § 406.]
    5. Physicians and Suegeons (§ 6) —Peac-ticing Without a License — Ceiminal Peosecution — Evidence.
    In a prosecution for practicing as a physician without a license, in violation of Acts 30th Leg. c. 123, evidence as to whether the treatment given by defendant to certain patients was harmful or beneficial was immaterial.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11-; Dec. Dig. § 6.*]
    6. Physicians and Suegeons (§ 6) — Practicing Without a License — Ceiminal Peose-cution — Evidence.
    In’ such case, evidence as to whether the I prosecuting witness had been treated by other physicians before she- was treated by defendant - was immaterial.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Gent. Dig. §§ 6-11; Dec. Dig. i 6.]
    7. CRIMINAL Daw (§ 1169) — Appeal—Harmless Error — Admission'op Evidence.
    In a prosecution for practicing as a physician without a license in violation of Acts 30th Leg. c. 123, the admission of the testimony of the father of the prosecuting witness that he had sugh witness treated by other physicians before she was treated by defendant was harmless error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3137-3143; Dee. Dig. § 1169.]
    •8. Criminal Law (§ 406) — Evidence—Statement by Defendant.
    Any statement of a defendant relative to the offense for which he is being tried is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 894-927; Dec. Dig. § 406.]
    9.-Criminal Law (§ 1119) — Appeal and Er-. ror — Record—Bill op Exceptions.
    Where a bill of exceptions fails to show the contents of an opinion and briefs read to the trial court in a criminal case, they cannot be held to be improper.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2927, 2930; Dee. Dig. 1 1119.]
    10. Criminal Law (§ 1035) — Appeal and Error — Reading Law in Presence op Jury —Objections.
    In a criminal case, where a defendant fails to request that the jury be retired, he cannot complain that authorities upon which the state relied were read to the court in the presence of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2633-2638; Dec. Dig. § 1035.]
    On Motion for Rehearing.
    11. Criminal Law (§ 1090) — Appeal and Error — Bill op Exceptions — Necessity.
    In the absence of a bill of exceptions showing the facts, the action of the trial court in permitting a name in an information to be changed to correspond with the name of the one making the complaint cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803-2827; Dec. Dig. § 1090.]
    12. Indictment and Inpormation (§ 122)— Complaint — Statutes.
    Under Code Cr. Proe. 1895, arts. 466, 467, providing that an information shall not be presented until oath has been made by some credible person charging the defendant with the offense, which oath shall be reduced to writing and filed with the information, where such oath is filed with the information, references in the information to the name of the one signing the complaint may be disregarded as surplusage, and a variance between the two is not fatal.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 321-325; Dec. Dig. | 122.]
    Appeal from Tom Green County Court; Milton Mays, Judge.
    W. J. C. Germany was convicted of practicing medicine and treating disease without registering a certificate as required by law, and appeals.
    Affirmed.
    R. B. Truly and W. E. Taylor, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      
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   HARPER, J.

The appellant in this case was prosecuted under information and -complaint, charged with the offense of practicing medicine and treating-- disease without registering a certificate as required by law.

Upon the trial the defendant admitted that he had never registered any license or authority of any character from the board of medical examiners. The contention in this ease is that any man has a right to treat disease by the masseur treatment, and charge therefor, and that it is not necessary to secure a certificate or license 'from the state medical hoard.

Chapter 123 of the Acts of the Thirtieth Legislature provides that it shall be unlawful for any person to practice medicine in any of its branches upon human beings, who have not obtained a certificate from the state medical board, and the act provides that in order to obtain a certificate a man must be examined as to his knowledge of anatomy, physiology, chemistry, histology, pathology, bacteriology, physical diagnosis, surgery, obstetrics, gynecology, hygiene, and medical jurisprudence. In section 13 of the act it is provided: “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.”

The proof shows that appellant circulated the following advertisement: “Massage. Mr. and Mrs. W. J. C. Germany, Masseur and Masseuse, Electric Treatment Given, 18 West Harris Avenue, San Angelo, Texas. Office Hours, 8:30 a. m. to 11:30 a. m. 1:30 p. m. to 5 p. m. They can refer you to numbers of cases they have cured, including rheumatism, neuralgia, catarrh, typhoid fever, etc. Can cure any curable disease without the use of poisonous medicine. Will practice anywhere their services are wanted. , Consultation and examination free.” Attached- to-this were many testimonials, among which was the following: “This is to certify that W. J. C. Germany, a masseur of our town-cured my boy, 7 years old, of typhoid fever in nine days; he had the fever 7 days before I called him. I heartily recommend him as a doctor to any one that is sick.” Others certify that defendant had cured them of inflammatory rheumatism, dropsy, epilepsy> female trouble, paralysis, liver and kidney trouble, catarrh, etc. Tbe evidence shows that he treated Miss Willie Luther for appendicitis and received $42 for the treatment. He is shown to have treated a number of others and received pay therefor, and was holding himself out as one who treated disease by the method mentioned in his circulars. lie did not give medicine to any one. Several say that he cured them, while Miss Luther is shown to have died.

The contention is made that the law is unconstitutional, and that the court erred in refusing to permit the defendant to show that “there was no board of medical examiners nor any authority in the state of Texas to whom the defendant could apply for a license or permit to practice massage treatment, and that, as the law made no provision for the practice of the masseur treatment, it was discriminating in its character.” We know of no higher duty a government has than to protect the life and health of its citizens, and, if experience has shown that no man should be permitted to treat disease who has not a knowledge of the subjects named in the medical practice act, the Legislature not only had the power, but it was its duty, to pass a law protecting the citizens of the state. The law does not attempt to saw how any one shall treat disease. This is left to the sound judgment of the practitioner. All it says is that he must have a knowledge of certain given subjects before he shall undertake to practice. If the defendant desires to treat those who are sick, let him demonstrate he has a knowledge of the subjects named in the law, and he can treat disease in the manner that is by him deemed best. Physicians all state that in some character of diseases they use “massage,” and that it is beneficial, while in others it is harmful. The court did not err in not permitting the defendant to prove there was no board where he could obtain license to practice massage. There is a board where he can obtain such license; but he must show, in order to get that license, that he has a knowledge of the human anatomy, is able to diagnose disease, and has a knowledge of the studies named. This is a wise provision, as we see it. In protecting the liberty of the citizen, and in protecting him in his property rights, our laws provide that no man shall practice law, or appear in the courts in behalf of another for a remuneration, unless he has gone before a board and demonstrated he has a knowledge of certain principles underlying the law, naming certain books he must read and master to some extent at least. When we are thus careful in dealing with the liberty and property of ■our citizens, how much more care should we take when we come to deal with matters relating to his very life and the preservation of his health. The question here raised is so fully and ably discussed by Judge IBrooks in Ex parte Collins, 57 Tex. Cr.‘ R. 2, 121 S. W. 503, and by Judge Ramsey in Newman v. State, 58 Tex. Cr. R. 223, 124 S. W. 956, we do not care to discuss it further.

The defendant in several bills of exception objected to the state proving that defendant has treated others than Miss Luther, on the ground that it would only serve to prejudice the jury against him. The offense with which defendant was charged was that he was offering to treat disease for pay without having registered his certificate.

The advertisement issued by defendant and the fact that he treated others for disease contemporaneously with Miss Luther was all admissible, as was the fact that he told Mr. Luther he could cure his daughter of appendicitis.

It was not a question in the case of whether the treatment given by defendant was harmful or beneficial, and the court did not err in not permitting this issue to get in the case.

It was immaterial whether Miss Luther had been treated by others before she was treated by defendant; but the fact that the court permitted her father to state that he had his daughter treated by other physicians before she was ' treated by defendant could not be injurious to defendant. The fact that defendant represented to witnesses that he could cure certain diseases, and had cured them, was admissible.

Any statement of a defendant relative to the offense for which he is being tried can be proven if the state desires to elicit it.

The defendant objected to the state proving by Dr. White of Temple, and other physicians, “that he was familiar with the sphere of labor of a masseur, such as is exempted under the operation of the medical practice act, and in permitting him to testify that the sphere was to work under the directions of a physician. That one who is not well up on anatomy, physical diagnosis, etc., is not capable of directing the use of massage.” As the defendant was claiming that he was exempt under that provision of the law, it was proper to admit the evidence.

The appellant complains'that the court permitted the state’s counsel to read to the court the opinion rendered in the Newman Case, and the briefs filed. It is not shown in the bill what was in the briefs. Therefore it is impossible for us to say whether or not it was improper.

It has long been the custom in this state for either the defendant or the prosecution to present to the court the authorities on which they rely, and, if the defendant objected to them being read in the presence of the jury, he should have asked that they be retired. This, the judge certifies, he did not do.

The appellant complains of the charge of the court in defining a “physician.” We think the definition given was in accordance with the decisions of this court in the Collins and Newman Oases hereinbefore referred to.

We have carefully reviewed the record in this case, and the court correctly submitted the law in his charge. Under the repeated decisions of our court, one who shall treat or offer to treat mental or physical disease by any system or method, and charge therefor, and who has not obtained authority to do so from the medical board, is amenable to the law.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this term of ■ court this case was affirmed, and appellant has filed a motion for a rehearing. All the questions raised in the bills of exception and motion for new trial were passed on in the original opinion. However, we find in the record a motion to quash the information, which was by the court overruled. No bill of exception was reserved to the action of the court in overruling it, and such action is not complained of in the motion for a new trial. However, it is insisted on in the motion for a rehearing in this court, and, if the information is defective, of course the case must be dismissed.

The allegation in the motion to quash the information is based solely on the ground “that the information states that it is based on the affidavit of J. S. McConnell; whereas, the affidavit attached to and made a part of the information is sworn to by Sam Grayson.”

In the record there is copied a complaint which is signed by Sam Grayson, and the information alleges “upon the affidavit of .Sam Grayson,” so the record before us discloses that no ground existed upon which to base the motion of appellant. If the name was ever changed in the information, and appellant desired us to review the action of the court in permitting it to be done, the facts should have been reserved in a proper bill of exception, that we could, from the record, determine the matter. In the absence of a bill of exception, there is nothing to review.

However, if there had been a mistake in name in the beginning of the information, as alleged by appellant, the information setting out the offense in full, the words “upon the affidavit of-,” not being descriptive of the offense, might be treated as surplus-age. Warren v. State, 17 Tex. App. 209; Hilliard v. State, 17 Tex. App. 213; Johnson v. State, 17 Tex. App. 231, the court saying: “We take occasion here to remark that it is wholly unnecessary to state in the information that it is founded upon complaint in writing under oath, or to make any mention whatever of the oath. This is not one of the requisites of an information. If the oath is filed with the information, it is all the law requires.” See articles 466 and 467, Code of Criminal Procedure; Steinberger v. State, 35 Tex. Cr. R. 494, 34 S. W. 617.

As all the other grounds in the motion were passed on in the original opinion, and the information charged all the requisites of the offense, even though appellant’s contention is correct, and the record before us wrong, the motion for a rehearing is overruled.  