
    TIPTON v. STATE.
    (No. 3172.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    Rehearing Denied June 26, 1914.)
    1. Physicians and Surgeons (§ 6) — Practicing Without Authority — Opticians.
    A person who traveled over the country testing eyes, with implements for so testing, etc., and taking orders for eyeglasses, was liable for the occupation tax under Rev. St. 1911, art. 7355, § 6, levying such a tax on itinerant physicians, surgeons, oculists, or specialists of any kind traveling from place to place in the practice of his profession.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.]
    2. Physicians and Surgeons (§ 6) — Practicing Without Authority — Evidence-Admissibility.
    In the prosecution of an alleged optician for practicing without license, witnesses were properly permitted to testify that accused stated to them that the glasses he offered were “medicated” glasses.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dee. Dig. § 6.]
    3. Jury (§ 127) — Impaneling foe Trial-Objections and Exceptions.
    It was not error for the court to overrule accused’s challenge to a juror because his name, was misspelled, made after the jury was impaneled, the complaint read, and part of the testimony .adduced; since the objection should have been made when the list was furnished.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 556-558; Dec. Dig. § 127.]
    4. CRIMINAL Law (§ 338) — Evidence—Admissibility.
    • In a prosecution of an optician for practicing without a license, the court properly refused to permit accused to show that a third party, who was not a witness, had employed an attorney to assist in the prosecution of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788,. SOI, 855; Dec. Dig. § 338.]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    John F. Tipton was convicted for unlawfully practicing as an optician without a license, and he appeals.
    Affirmed.
    Fritz R. Smith, of Snyder, and Will S. Payne, of Dallas, 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
    
   HARPER, J.

Appellant was prosecuted for unlawfully engaging in, pursuing, and following the occupation of a specialist in the line of an optician, traveling from place to place in the practice of his profession without first having obtained a license therefor.

Bob Browning testified that appellant came to his house and made a trade with him to drive him over the county for 21 days, and he did so; that appellant—

“was taking orders for glasses from samples of lenses he had with him to be sent to the party who ordered. X bought two pair of glasses from him, one of them was for my mother. Ies; I went with him to a number of houses, spent several days in Ira neighborhood, in Scurry county, some 15 miles south of where I live. He also worked the country west of Snyder between Ira and where I live. I also went with him over in the Polar neighborhood, in Kent county. 1-Ie told me he had worked up about Spur, in Dickens county, and in Haskell county and about Stamford, in Jones county; also said he had been in the eye business for several years. He did tell me that he was an optician, and had been for several years.”

J. I. Burrow testified:

“I know this defendant John F. Tipton; he took my wife’s measurement for what he called a pair of medicated glasses some time during the month of January, 1914. 'He represented himself to be an optician; said his glasses, by virtue of being medicated, would cure the headache. This happened in Scurry county, state of Texas. He had implements for testing eyes, and tested my wife’s eyes. He said he had been following the business of an optician for six or seven years.”

A number of other witnesses testified that appellant came to their homes; that he had with him instruments for testing the eyes and fitting glasses; that he would sell the glasses, taking the money therefor; that he stated he would send for the glasses and have them delivered, and they would come in about ten days.

These facts would, within contemplation of the law, make him liable for the occupation tax levied by section 6 of article 7355 of the Revised Civil Statutes, and the court did not err in so holding. The evidence conclusively shows that appellant had not paid the tax levied by this provision of the law. .

We have carefully read the charge of the court, and it is not upon the weight to be given the testimony, as is contended by appellant. The term “optician” is sufficiently defined in the special charge given, and it was not necessary to give the other special charge requested in regard thereto. The court quoted the definition of “optician” as given in Century Dictionary.

[•2] Some of the witnesses testified that appellant stated to them that the glasses he offered them were “medicated glasses.” Appellant objected to this testimony, but the court committed no error in admitting the testimony. If he had with him different character of lenses or glasses with which he fitted the eyes, and stated to some that they-needed “medicated glasses,” and he could fit their eyes with them, it would be permissible for the witness to so state.

As to the juryman T. J. Blackburn, the court committed no error in overruling his challenge to the panel. If the clerk improperly spelled the name, the appellant should have objected when the list was furnished, and not have waited until after- the jury had been impaneled, complaint read, and part of the testimony adduced. Mr. Blackburn had been regularly summoned, as shown by the qualification of the court, and, if appellant had objected, at the time the list was delivered to him, to the juror on account of the misspelling of the name, the court could then have had the clerk correctly spell the name on the list.

As Mr. Towle was not a witness in the case, the court properly held that it was immaterial whether or not Towle had employed an attorney to assist in the prosecution of the'case. Had Towle been a witness, the testimony would have been admissible as affecting his interest and bias.

We have carefully read the charge of the court, and it sufficiently and clearly presents the issues; therefore it was not necessary to give the special charges requested. Some of the special charges do not present correct propositions of law, and were properly refused, while the others were fully covered in the charge as given.

The judgment is affirmed.  