
    McCOY v. STATE.
    (No. 10805.)
    Court of Criminal Appeals of Texas.
    May 18, 1927.
    Rehearing Denied June 22, 1927.
    i.Criminal law &wkey;>195(2) — Former acquittal of unlawfully practicing medicine upon person named “and divers other persons” held not to bar prosecution for practicing at different time on another person named; “jeopardy”; (Medical Practice Act [Pen. Code 1925, art. 739]).
    Former acquittal in prosecution for violating the Medical Practice Act (Pen. Code 1925, art. 739), under an information alleging that defendant had unlawfully practiced medicine upon a person named “and divers other persons,” held not to bar a prosecution for unlawfully practicing medicine at a different time, on another named person, on the ground of former “jeopardy.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series,. Jeopardy (In Criminal Law)].
    2. Criminal law <&wkey;1120(3) — Bill of exceptions complaining of refusal to allow question to be answered held not reviewable, where not stating expected answer.
    Where a bill of exception complaining of the court’s refusal to permit question on cross-examination did not state what the witness’ answer to the question would have been, held, that the bill was defective, since it did not show error upon its face.
    3. Criminal law &wkey;>655(I) — Court’s reprimand ■ to defendant, carrying innuendo that defendant was frequently prosecuted, held not error, where jury knew defendant was prosecuted before.
    In a prosecution for violating the Medical Practice Act (Pen. Code 1926, art. 739 et seq.), the court’s reprimand to the defendant for making a remark not called for by a question, carrying an innuendo to the effect that the defendant was frequently prosecuted, held not error, where the jurors knew defendant had been tried before and acquitted and had said that they would not be influenced by such knowledge.
    4. Criminal law &wkey;>l 186(4) — Court’s charge if on weight of evidence held harmless, where not injuring defendant’s rights (Code Cr. Proc. 1925, art. 666).
    Under Code Cr. Proc. 1925, art. 666, which forbids reversal on the charge unless for error calculated to injure defendant’s rights, the court’s charge alleged to be upon the weight of the testimony held harmless, where, if error, defendant’s rights would nevertheless not be injured.
    5. Criminal law &wkey;>1038(4) — Objection to • charge will not be considered where not made in writing before charge was read to jury and no special charge covering point was presented (Code Cr. Proc. 1925, arts. 658-660).
    Appellant’s objection to court’s charge will not be considered where he did not make timely objection in writing before it was read to the jury, as required by Code Cr. Proc. 1925, art. 658, and failed to show that he presented a correct special charge covering the point, as required by articles 659, 660.
    On' Motion for Rehearing.
    6. Criminal law i&wkey;292(2) — Plea of former acquittal must show identity of transactions.
    Plea that prosecution is barred because of former acquittal for same offense must prove that the transactions on which the prosecutions were based are identical.
    Commissioners’ Decision.
    Appeal from Paris County Court; W. Dewey Lawrence, Judge.
    M. B. McCoy was convicted of violating the Medical Practice Act, and he appeals.
    Affirmed.
    
      Johnson, McCoy & McMillan, of Dallas, and ■ Frank Winter, of La Crosse, Wis., for appellant.
    Chas. L. Black, Robert M. Turpin, Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., all of Austin, for the State.
   BAKER, J.

The appellant was convicted of violating the Medical Practice Act (Pen. Code 1925, art. 739 et seq.), and his punishment assessed at a fine of $50 and 15 days in jail.

The appellant was charged by complaint and information, under article 739, P. C. 1925, in the first count, with unlawfully treating and offering to treat J. R. Cassidy on or about September 1, 1926, without first having obtained a license and certificate of professional qualification from the Texas state board of medical examiners; and, in the second count, with treating and offering to treat said Cassidy on or about September 1, 1926, for a disease and disorder, and receiving money therefor, without first obtain-taining a license from the Texas state board of medical examiners and having same recorded in the office of the district clerk, as required by law.

The state’s witness Cassidy testified that the appellant maintained an office in the city of Paris; that he, Cassidy, injured his back in lifting a box during the summer of 1926; that, he called upon appellant for an adjustment; that appellant gave him one treatment on the occasion of his first visit and two more treatments thereafter; that in giving said treatments the appellant ran his hands up and down the witness’ backbone and brought pressure to bear thereon; and that for said treatments the witness paid appellant $5.

The appellant took the stand in his own behalf and testified that he was a chiropractor; that he had practiced his profession in the city of Paris for 6 years, and followed no other business; that he examined the witness Cassidy and found that some of the vertebra in his spinal column were not in proper alignment; and that he adjusted same for Cassidy, receiving $5 for his services.

The record contains 8 bills of exception. In bill No. 1 appellant complains of the action of the court in sustaining the state’s motion to strike out his plea of former jeopardy. This bill discloses that the appellant based his plea upon the fact that he had previously been acquitted under a complaint and information alleging that he had violated the Medical Practice Act by practicing medicine upon Mrs. Yera Spann and divers other persons on or about February 6, 1926. The court committed, no error in'striking out the plea of former jeopardy, because said plea showed upon its face that the former information charged appellant with treating Mrs. Vera Spann at another and different time from the treatment of the witness Cassidy involved in the instant case. Consequently, the acquittal on the former charge could not be jeopardy under the instant information. Byrd v. State, 72 Tex. Cr. R. 265, 162 S. W. 363; Young v. State, 78 Tex. Cr. R. 305, 181 S. W. 472.

Bill No. 2 raises the same question discussed in bill No. 1, and consequently requires no additional consideration.

In bill of exception No. 3 appellant complains of the refusal of the court to permit him, on cross-examination of the district clerk, to interrogate her relative to why one of the pages in the medical register had been cut out, after the witness had testified that said register did not contain any iicense or verification license issued by the state board of medical examiners to the appellant. This bill is defective in failing to state what the witness’ answer to said question would have been. This court has frequently held that a bill of exception, to be sufficient, must show error upon its face; otherwise, this court will not consider same. Hennington v. State, 101 Tex. Cr. R. 12, 274 S. W. 599; Rodriguez v. State, 104 Tex. Cr. R. 572, 286 S. W. 226. However, we fail to see how the rejection of this testimony could have injured the appellant, since he testified in the case and admitted that the state board of medical examiners had never issued a license' to him.

In bill No. 4 complaint is made to the remarks of the court to appellant while the latter was a witness. It appears that appellant’s counsel asked him whether or not he had a chiropractor’s license, to which the state objected upon the ground that same was irrelevant and immaterial, whereupon appellant stated to counsel representing the state, “There are about 500 of us.” The state’s attorney objected to this remark and moved the court that same be stricken out, in response to which motion the court stated to appellant:

“The next time you make a remark like that you will be in contempt of court. You should have learned by this time not to speak in court unless you are asked a question.”

The court then stated to the jury:

“You gentlemen of the jury will not consider any remarks made by the defendant or any other person except in reply .to questions asked.”

The appellant excepted to the remarks of the court as being prejudicial. This bill of exception shows that all of the jurors, upon being examined, stated that they knew of appellant having been tried before and knew the results of the eases, but that they would not be influenced either way by reason of such knowledge. This bill, under tbe facts of tbe case, shows no error.

Bills 5 and 6 complain of tbe court’s charge as being upon tbe weight of tbe testimony, and of tbe failure of the court to give a special charge on said issue presented by tbe appellant. Conceding that tbe appellant’s contention is true, we would not be authorized to reverse this case in view of article 666, O. C. P. 1925, which forbids a reversal on tbe charge in tbe absence of error calculated to injure tbe rights of tbe appellant. Tbe appellant having admitted that be treated the prosecuting witness and received pay therefor, then tbe court’s charge, even if upon the weight of the testimony, would be harmless. Maier v. State, 90 Tex. Cr. R. 459, 235 S. W. 576; Trammel v. State, 100 Tex. Cr. R. 412, 273 S. W. 602.

In bill of exception No. 7 complaint is made to the action of the court in charging the jury on the prima facie feature of the appellant’s failure to record with the district clerk his medical license and certificate, under article 739, P. C. 1925. The appellant contends that this charge was upon the weight of the evidence. This bill is defective in failing to show that the appellant made timely objection in writing to said charge before it was read to the jury, as required by article 658, C. C. P. 1925, and in failing to show that he presented a correct special charge covering this point at the proper time, as required by articles 659 and 660, O. O. P. 1925. In addition, what we have said relative to bills 5 and 6 is also applicable to this bill.

In bill No. 8 complaint is made to the refusal of the court to grant appellant 30 days within which to prepare the statement of facts and bills of exception. The statement of facts and bills of exception are filed, and there is no error shown in this bill.

. Finding no error in the record, the judgment of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

MORROW, P. J., absent.

On Motion for Rehearing.

MORROW, P. J.

Appellant interposed a plea in bar upon the ground of former acquittal. In the plea it is averred that on the 6th day of February, 1926, he was charged with “unlawfully practicing medicine upon Mrs. Vera Spann and divers other persons.” Upon the trial he was acquitted. The present trial was upon an information charging that the appellant, on the 1st day of September, 1926, did unlawfully practice upon J. R. Cassidy. There is no specific averment as to the identity of the transactions. If the words “divers other persons” were effective to charge an offense in treating any person other than Mrs. Spann, which is very doubtful, the plea, in failing to aver that Cassidy was one of the “other persons,” falls short of the legal requirement that such plea must show the identity of the transaction. The only averment on that subject in the plea is that “the facts in the Spann Case and the Cassidy Case are the same.” To avail himself of the plea of former acquittal, the transactions must be the same, and the two indictments sustainable by the same proof. See Wright v. State, 17 Tex. App. 152; Vernon’s Tex. C. C. P. 1925, vol. 1, p. 399; Andrus v. State, 105 Tex. Cr. R. 68, 286 S. W. 1088. See, also, article 508, C. C. P. 1925; Spannell v. State, 83 Tex. Cr. R. 418, 203 S. W. 357, 2 A. L. R. 593; Fehr v. State, 36 Tex. Cr. R. 93, 35 S. W. 381, 650; 2 Bishop’s New Crim. Law, p. 634. Moreover, the statute seems to negative the sufficiency of the plea in thdt each day would be a separate offense, and apparently each person treated would likewise be a separate offense. The nature of the criminal act is one applicable to an individual, and not to a collection of individuals. See Byrd v. State, 72 Tex. Cr. R. 265, 162 S. W. 363.

In refusing to submit the plea of former acquittal to the jury, in our opinion, no error was committed.

The motion for rehearing is overruled. 
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