
    MILLING v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 16, 1912.)
    1.Physicians and Surgeons (§ 6)— Unlawful Practice of Medicine — Indictment — Sufficiency.
    An indictment alleging that accused practiced on human beings without authority of law, in that he unlawfully treated a physical disease of a person named and charged him indirectly therefor, said treatment being given in the capacity of a physician, under a system of treatment consisting in the performance of physical manipulations, sufficiently charges a practicing of medicine within Pen. Code, art. 755, declaring that one who shall treat .any disease by any system and charge therefor shall be regarded as practicing medicine, and the indictment need not allege that the treatment accused practiced was not within his particular sphere as a masseur, nor negative that he did not publicly represent himself as a masseur.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. " 6.]
    2. Physicians and Surgeons (§ 6) — “Practice of Medicine” — Masseur.
    A masseur who publicly represents himself as a masseur, and who limits his practice to that of a masseur, is exempt from the law requiring a certificate for the practice of medicine; but where he represents himself as a masseur, but undertakes to cure diseases for pay and represents himself as able to cure diseases, he must obtain the proper certificate.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dee. Dig. §i 6.
    
    For other definitions, see Words and Phrases, vol. 6, pp. 5488-5191; vol. 8, p. 7758.]
    3. Physicians and Surgeons (§ 6) — Practicing Medicine — Masseur—Instructions.
    Where, on a trial for practicing medicine without a license, the state proved that accused treated diseases as a doctor, and charged indirectly therefor without having a license, and accused claimed that he practiced solely as a masseur and so advertised himself, the instructions which drew clearly the distinction between the practice of medicine and the practice solely as a masseur, and which submitted the issue to the jury, and which stated that, before accused could be convicted, the jury must be satisfied that he practiced medicine and charged for his services in the practice, etc., correctly presented the issues.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Gent. Dig. §§ 6-11; Dec. Dig. § 6.]
    4. Criminal Law ('§ 1172) — Appeah-Harmless Error — Instructions.
    A charge on a trial for practicing medicine without a license, which embodied Pen. Code, art. 750, to the effect that, if the affidavit of authority to practice prescribed thereby was willfully false, it would subject the applicant to punishment for false swearing, was not prejudicial to accused, where no evidence was submitted on such an issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dee. Dig. § 1172.]
    5. Physicians and Surgeons (§ 6) — Practicing Without License — Issues, Proof and Variance — '“Upon”—'“Over.”
    An indictment alleging. that accused practicing medicine without a license treated a patient, and that the treatment consisted in physical manipulations with accused’s hands “over” the patient, is sustained by proof that accused placed his hands “upon” the patient and rubbed and manipulated his hands “upon” his body; the words “upon” and “over” being synonymous.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig...§§ 6-11; Dec. Dig. §6.
    
    For other definitions, see Words and Phrases, vol. 6, pp. 4960 — 4966; vol. 8, p. 7737; vol. 6, pp. 5123, 5124.]
    
      6. INDICTMENT AND INFORMATION (§, 72) — Disjunctive Allegations — “Physician”— “Doctor.”
    An indictment alleging that accused practicing medicine -without a license treated, a physical disease in the capacity of a physician or doctor or both is not objectionable because in the disjunctive; the words “physician” and “doctor” being synonymous.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 195-199; Dec. Dig. § 72.
    
    For other definitions, see Words and Phrases, vol. 6, pp. 5374-5376; vol. 8, p. 7754; vol. 3, p. 2153.]
    7. Physicians and Surgeons (§ 6) — Practicing without License — Indictment — Evidence.
    An indictment alleging that accused practicing medicine without a license practiced under a system of treatment, the name of which was unknown to the grand jury, but which treatment consisted in the performing of physical manipulations, does not require evidence to sustain a conviction that the name of the treatment was unknown to the grand jury.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dee. Dig. § 6.]
    Appeal from Stephens County Court; N. N. Bosenquest, Judge.
    R. G. Milling was convicted of unlawfully practicing medicine, and he appeals.
    Affirmed.
    A. A. Clarke, of Albany, and W. P. Sebastian, of Breckenridge, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.
    
   PRENDERGAST, J.

The appellant was indicted and convicted for unlawfully practicing medicine. His penalty was fixed at 850 fine and 20 minutes in jail.

The indictment, in substance and in effect, alleges that on or about November, 10, 1910, appellant, who was then a resident of Stephens county, Tex., did practice in said county upon human beings without authority of law, in that he did unlawfully treat a physical disease and disorder of R. L. McFall, and charged him indirectly therefor $2, ¡said treatment being given in the capacity of a physician or doctor, or both, under a system of treatment the name of which is unknown to the grand jury, which treatment consists and did then consist in performing certain physical manipulations with his hands over said McFall, without having first registered in the district clerk’s office of said county his authority from the board of medical examiners for so practicing, together with his age. post office address, place of birth, and school of practice to which he belonged, subscribed and sworn to as required by law, in violation of the provisions of Acts 30th Leg. c. 123.

Appellant made a motion to quash this indictment on several grounds — one to the effect that the allegations simply amounted to a charge that the defendant treated said McFall as a masseur, and that masseurs were exempt from said law, and that because the subjects prescribed for applicants to practice are such as to exclude, or not authorize masseurs to be examined and get a license. In our opinion the indictment charges on this point the reverse of what appellant contends, in that it charges clearly that appellant practiced as a doctor or physician on human beings and unlawfully treated a disease and disorder of McFall. This' court in a well-considered opinion has expressly held that a masseur, where he wants to practice, can obtain a license from the state medical board, but, in order to do so, he must stand an examination in the subjects prescribed by the law. Germany v. State, 62 Tex. Cr. R. 279, 137 S. W. 130. It was not necessary for the indictment, as claimed by appellant, to allege that the treatment appellant practiced was not within the particular sphere of his labors as a masseur, and to negative that he did not publicly represent himself as a masseur. Newman v. State, 58 Tex. Cr. R. 223, 124 S. W. 956. Under the facts of this case, it was proper for the court in its charge to the jury to quote the second clause of P. O. art. 755, which was section 13 of the said act. Appellant’s complaint is that the second clause of said article should not have been quoted, because the prosecution is based on the first, and not on the second, clause. The reverse of his contention is the fact as shown by the indictment.

The issue in this case was sharply, correctly, and accurately drawn. The state alleged and proved that the appellant practiced upon human beings and treated them for disease and disorder as a doctor or physician and charged indirectly therefor without procuring and having registered a license therefor. The appellant claimed that he did not so practice, but that he practiced simply and solely as a masseur, so advertising himself. The court, both in the main charge and in the charges given at appellant’s instance and the state’s, clearly drew this distinction, and the jury found, as they were clearly authorized by the evidence, that the appellant was practicing as alleged, not as a masseur, "but as a doctor or physician.

It was entirely proper, therefore, for the court to charge, as it did, that masseurs in their particular sphere of labor who publicly represent themselves'as such are exempt from the law requiring a certificate of their authority to be recorded before' practicing that art, but that if, notwithstanding he so represents himself as a masseur, he undertakes to cure diseases for pay, and represents himself as able to cure diseases in that manner, he could not do so legally without the proper certificate registered in the clerk’s office, etc. In other words, he could not hold himself out as a masseur, claiming to treat diseases without pay, and as a matter of fact treat human beings for disease and disorder as a doctor and indirectly charge them therefor, without a certificate registered, etc!

As stated aboye, these issues were clearly submitted by the charge of the court and' the distinctions properly drawn, and the jury, as the evidence clearly justified, found that he did treat diseases and disorders of human beings as a doctor and charged therefor indirectly, and that he did not merely treat persons as a masseur without charging therefor. Not only did the main charge of the court properly submit these questions to the jury, but, in addition thereto, gave appellant’s requested charge to the effect that, before they would be authorized to convict him, they must be satisfied from the evidence beyond a reasonable doubt that he did practice medicine in said county, said MeEall being the patient, within the period of limitation, and charged money or other valuable things for his services in said practice, and unless they so found, from the evidence, to acquit the defendant. Then, at the state’s instance, the court correctly charged that if they .found from the evidence that said McFall paid appellant $2 for board and lodging, and did not pay him said sum for treatment of disease of the body, to find him not guilty; but, if they should find beyond a reasonable doubt that the said $2 was in reality paid by MeEall and received by defendant as payment for a treatment of disease and the understanding between them, if there was any, that the said $2 paid for board and lodging was a mere subterfuge to evade the law, and they further found that every other allegation in the indictment was fully sustained by the proof, to find the defendant guilty. These charges, as well as the main, charge of the court as stated above, correctly presented all the issues in the case, and none of appellant’s objections thereto are well taken. The proof clearly showed or authorized the jury to find and believe that, notwithstanding he advertised, himself as a masseur and to treat diseases free of charge, as matter of fact, he charged for treating diseases as a doctor under the guise and sham of charging a hotel bill, and that, instead of treating simply and solely as a masseur without pay, he treated diseases continuously and received pay therefor.

While it was not necessary in the court’s main charge to quote the whole, particularly the latter part, of article 750, P. C. (section 4 of said act), to the effect that, if the affidavit prescribed thereby was willfully false, it would subject the applicant to conviction and punishment for false swearing, in submitting the various questions to the jury nothing whatever was submitted on that subject. The quotation of the statute, therefore, could not have, and did not in any way, injuriously affect appellant, and could not have misled the jury on the issues which were properly submitted.

Appellant’s bill claiming that there is a fatal variance between the allegations in the indictment to the effect that the treatment which appellant gave McFall consisted in certain physical manipulations with his hands “over” said MeEall, when the proof showed that appellant placed his hands “upon” said McFall, and rubbed and manipulated his hands “upon” his body, is hypercritical, and presents no error. “Upon” and “over,” as alleged and proved, were practically the same thing, and were synonymous.

Neither is there anything in appellant’s complaint that the verdict of the jury is unsupported by the evidence, in that the allegation is that appellant treated a physical disease and disorder of said McFall in the capacity of a physician or doctor, or both, being in the disjunctive and not in the conjunctive. “Physician” and “doctor” are synonymous, and are so understood and used, and the allegation in the indictment where these two words are used could not be considered as disjunctive allegations.

Neither is there anything in appellant’s complaint that the verdict is unsupported by the evidence, because there was no proof that the name of appellant’s treatment was unknown to the grand jury. To take the whole allegations in the indictment, while it is said therein that the name of the treatment is unknown to the grand jury, what it was, was particularly and specially therein alleged and proven. Harris v. State, 37 Tex. Cr. R. 447, 36 S. W. 88. Practically all the questions’ raised in this case as to the sufficiency of the indictment and the act of the Legislature under which this prosecution was had has been so often and repeatedly construed and passed upon by this court that we deem it unnecessary to further discuss any of the questions. See Newman v. State, 58 Tex. Cr. R. 223, 124 S. W. 956; Dankworth v. State, 61 Tex. Cr. R. 157, 136 S. W. 788; Germany v. State, 62 Tex. Cr. R. 276, 137 S. W. 130; Singh v. State, 146 S. W. 891; Stiles v. State, 148 S. W. 326; Ex parte Oollins, 57 Tex. Cr. R. 2, 121 S. W. 501.

The judgment will be affirmed.  