
    RUTHERFORD v. STATE.
    (No. 3213.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Indictment and Information (§ 159) — Amendment — Power op Court.
    Where an indictment, .charging the offense of pursuing the occupation of an itinerant physician without payment of the tax required, used the word "physicial” instead of “physician,” the court, under the direct provisions of White’s Ann. Code Cr. Proc. art. 587, is without authority to substitute “n” for “1”; the matter being one of substance.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §« 505-514; Dec Dig. § 159.]
    2. Indictment and Information (§ 159) — Sufficiency.
    An indictment improperly amended in a matter of substance will not support the conviction.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. § 159.]
    
      3. Physicians and Surgeons (§ 6) — Itinerant Physician — Who are.
    Where accused for over a year preceding the prosecution had been a resident of the city of V. and had practiced medicine in the county in which such city was situated, he cannot be convicted of pursuing the occupation of an “itinerant physician” without payment of the tax required, even though he was not authorized to practice in the' county, because he had not obtained a liecnse and registered as a physician.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.]
    Appeal from Wilbarger County Court; J. B. Copeland, Judge.
    J. S. Rutherford was convicted of pursuing the occupation of itinerant physician without having paid the tax required, and he appeals.
    Reversed, and prosecution ordered dismissed.
    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
    
   HARPER, J.

Appellant was prosecuted and convicted under an indictment charging him with engaging in and pursuing the occupation of a physician, traveling from place to place, without having paid the tax levied on said occupation, and his punishment was assessed at a flue of $75, being the amount of the state and county tax on such occupation.

In that part of the indictment wherein it was intended to allege that appellant “followed the occupation of physician, traveling from place to place,” etc.,. the word “physician” was written “physicial”; an “1” being written where it should have been an “n.” Appellant, among other grounds, moved to quash the indictment because there was no such occupation taxed as a “physicial.” The court refused to quash the indictment, and ordered the clerk to change the indictment so as to read “physician.” This the court had no authority to do, as this word was a matter of substance in the offense charged and not mere matter of form. An indictment cannot be amended in matter of substance. Article 587, White’s Ann. Cr. Proc. And it is a rule of láw that an indictment thus altered will not support a conviction. Calviv. State, 25 Tex. 789; Edwards v. State, 10 Tex. App. 25. Had the trial court not undertaken to change the wording of the indictment, the whole context might have been sufficient, notwithstanding this mistake in spelling the word “physician,” but we cannot countenance the alteration of indictments in matters of substance after they have been returned into court.

Again, we do not think the evidence in this case would sustain the conviction. He was prosecuted for pursuing the occupation of itinerant physician, going from place to place, in the practice of that profession, without paying the tax levied by law. The evidence conclusively shows that he had been a resident of the city of Vernon, in the county of Wilbarger, for more than a year at the date of the institution of these proceedings, and would show him guilty of violating that provision of the Code prohibiting any one from practicing medicine without having obtained a’ license from the medical board and registering same, and not the article preventing one from practicing medicine as an itinerant physician without having paid an occupation tax. Had he paid the occupation tax under the evidence in this case, he would not have been authorized to practice medicine, and, as the evidence clearly shows that his fixed residence since he has been in' this state has been at Vernon, he would not be liable for the tax levied on traveling physicians. Taking this view of the case, it is unnecessary to discuss the other questions raised.

The judgment is reversed, and the prosecution ordered dismissed.  