
    HOLDER v. STATE.
    (No. 11688.)
    Court of Criminal Appeals of Texas.
    May 23, 1928.
    Rehearing Denied June 23, 1928.
    1. Criminal law <§=>507(1) — Criminal connection, necessary for accomplice, does not exist between patient and one practicing medicine without authority (Pen. Code 1925, art. 739; Code Cr. Proc. 1925, art. 718).
    Patient merely receiving treatment from one practicing medicine without having registered authority therefor, in contravention of Pen. Code 1925, art. 739, is not an accomplice within Code Cr. Proc. 1025, art. 718, forbidding conviction on testimony of accomplice alone; such incidental connection not being the necessary criminal connection.
    On Motion for Rehearing.
    2. Physicians and surgeons <3=>6 (9) — Treatment of different diseases is provable under state’s pleading charging treatment for disease not named.
    Under state’s pleadings, charging that defendant, without being legally equipped for the occupation, treated a certain person for a disease, not specifically named, there may be proof of treatment of various diseases. .
    Appeal from Walker County Court; P. H. Singeltary, Judge.
    
      A. W. Holder was convicted of the unlawful practice of medicine, and be appeals.
    Affirmed.
    
      M. E. Gates, of Huntsville, for appellant.
    Black & Graves, Robert M. Turpin, and A. A. Dawson, State’s Atty., all of Austin, for the State.
   HAWKINS, J.

Conviction is for practicing medicine without having registered in the district clerk’s office of the county where appellant resided authority to so practice as required by article 730, P. O. 1925. Punishment was assessed at a fine of $50 and confinement for one minute in the county jail.

The evidence shows that appellant gave “chiropractic adjustments to one Robbins for a consideration, and that appellant had no legal authority to practice medicine under the statute referred to. Four bills of exception appear in the record, all of which complain of admission of evidence over appellant’s objections. We have examined the bills carefully, and all the testimony admitted over objections seems so manifestly pertinent and proper that we deem it unnecessary to discuss the bills..

Appellant conceived the idea that Robbins, the patient treated by appellant, was an accomplice witness. The court did not charge upon the issue. Appellant requested two special charges upon the subject. Of course, if Robbins was an accomplice appellant must go free under article 718, C. C. P. 1925, which forbids a conviction upon the testimony of the accomplice alone. We must confess that it has been difficult for us to even imagine a case where the patient could possibly be an accomplice. We are quite sure the facts do not even squint at the issue in the present case. The prosecution is founded upon a breach of duty by appellant— a failure to register his authority to practice medicine — a matter with which Mr. Robbins had no connection whatsoever. He simply went to appellant for treatment. Nothing he did or omitted to do would form a basis for prosecution against him. The very definition of an “accomplice” as here used excludes Mr. Robbins as such. An accomplice “includes all persons who are connected with the crime by unlawful act or - omission on their part, happening either before, at the time of; or after the commission of the offense, and whether or not they were present and participated in the commission of the crime.” It is not enough that there be an incidental connection with the offense — here receiving treatment from appellant; but the connection must be criminal in its nature. Unless some character of criminal participation may be attributed to the patient, he cannot be an accomplice. By no-sort of mental legerdemain can we discern any such connection in the present ease. Wilson v. State, 49 Tex. Cr. R. 496, 93 S. W. 547; Hyroop v. State, 79 Tex. Cr. R. 150, 179 S. W. 878.

The judgment is affirmed.

On Motion for Rehearing.

DATTIMORE, J.

The charge in the state’s pleadings was that appellant treated a certain named person for a disease without being legally equipped for such occupation. There was no specific disease named in the pleading.' The fact that under such plea proof was made of the treatment of different diseases is made the subject of complaint in this motion. We think the complaint without support.

We have no difficulty in again concluding that parties who went to appellant for treatment were not accomplices. No sort of criminal connection or knowledge on the part of these patients appears.

The motion for rehearing is overruled. 
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