
    MUELLER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1913.)
    1. Indictment and Information (§ 132)— Counts — Election.
    Where an indictment for unlawfully practicing medicine charged in one count that defendant practiced medicine, witho.ut authority and without a license, by treating certain named persons, and in another count that he publicly professed to be a physician, and offered to treat diseases without first having registered his license, etc., the state was not required to elect on which of the counts it would rely for a conviction under the rule that election between counts cannot be required in misdemeanor cases.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425-403; Dec. Dig. § 132.]
    2. Indictment and Information (§ 132)— Counts — Electio n .
    ■■Submission of a prosecution to the jury under one count of an indictment for felony of itself amounts to an election. •
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425-453; Dec. Dig. § 132.] .
    3.Physicians and Surgeons (§ 6) — Practicing Without License — Evidence.
    Evidence held to sustain a conviction of accused for unlawfully practicing medicine without a license.
    .[Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dee. Dig. § 6.]
    4.Physicians and Surgeons (§ 6) — Practicing without License — Evidence — Advertisements.
    In a prosecution for practicing medicine without a license, newspaper advertisements, in which defendant called himself a “professor” able to cure any and all diseases, and invited the afflipted public to come to him for treatment, were not inadmissible, because they did not show that he was practicing, or offering to practice, medicine, and did not claim to be a physician or practitioner of medicines belonging to any particular school, or because such advertisements stated that he made no chargfe.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.]
    5.Physicians and Surgeons (§ 6) — Reception of Evidence — Order of Proof.
    In a prosecution for practicing medicine without a license, defendant’s newspaper advertisements were not objectionable because the state, at the time the advertisements were offered, had not shown that defendant had treated the particular persons named in the first count of the indictment.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. i 6.] -
    6.Physicians and Surgeons (§ 6) — Practicing without License — Evidence.
    Where defendant was charged in one count with practicing medicine in that he treated certain named persons, and in another count with’ offering to treat diseases without a license, evidence that, at various times about the time charged in the indictment, defendant treated numerous witnesses, whose names were not mentioned in the indictment, for various ailments and diseases was admissible in support of either or both counts.
    [Ed. Note. — For other-cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dee. Dig. § 6.]
    7.Witnesses (§ 52) — Competency — Husband and Wife.
    In a prosecution of a husband for practicing medicine without a license, evidence that defendant treated witness, and that in his presence he paid defendant’s wife money therefor, and that she accepted it after witness had offered the money to defendant directly and he had declined to take it, was not objectionable as compelling the wife indirectly to testify against her husband.-
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 124-130; Dec. Dig. § 52.]
    Appeal from District Court, Gillespie County; Clarence Martin, Judge.
    John Mueller was convicted of unlawfully practicing medicine, and he appeals.
    Affirmed.
    C. E. Jbane, 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
    
   PRENDERGAST, J.

Appellant appeals from a conviction for unlawfully practicing ’medicine, with a penalty of a fine of $100 and 24 hours in jail.

The indictment is substantially in accord with the statute, and is such as this court has uniformly and repeatedly held good. Ex parte Collins, 57 Tex. Cr. R. 2, 121 S. W. 501; Singh v. State, 146 S. W. 891; Stiles v. State, 148 S. W. 326, and other cases.

The indictment in this case was in two counts. The first charged that appellant practiced medicine without authority and without license properly registered, sworn to, etc., on certain persons, naming them. The second count is that he publicly professed to be a physician, and offered to treat diseases and disorders, etc., without first having registered his license to do so, with his proper address, age, etc. The court did not submit the first count, but submitted only the second. Election between counts cannot be required in misdemeanor cases. Stebbins v. State, 31 Tex. Cr. R. 294, 20 S. W. 552; Thompson v. State, 32 Tex. Cr. R. 265, 22 S. W. 979.

Even in felony cases, where election can be required, when the court submits the case under one count, that itself is an election.

The uncontradieted evidence clearly shows that appellant, by his public advertisements in newspapers, and to others, publicly offered to practice, and professed to' be able to cure practically any and all diseases, and invited all afflicted to call on him for that purpose; but in his advertisements and in his tails to many of his patients he would tell them specifically he made no charge. In his advertisements he stated, “Positively no charges made, but the labor is worth the hire;” and repeatedly stated this to some of his patients. However, the evidence discloses that numerous of his patients, whom he did treat, paid him indirectly. One paid to his wife in his presence; others by doing worls for him; other by making him or his wife presents; another by renting him a house and collecting no rent for several months. To one’ he prescribed medicine and furnished it. Others paid him money directly for his treatment of them. One witness, whom he treated repeatedly and for some time, stated that, in discussing the treatment and his charges, he said: “ T won’t charge you anything [I don’t know how many times he said that], nothing; but, if you make me a present, it is welcome.’ * * * I made him a present; it was in money. Sometimes I would hand him $1, and sometimes $2 or something like that. I never told him, ‘Here is your money.’ I just put it in his hand, and he never looked at it. He just put it in his pocket.” It was also shown that he called himself “Dr. Mueller,” and was generally known and called “Dr. Mueller,” and that was the title he gave himself. He was shown not to have any license registered. The evidence clearly justified the verdict.

When the state offered to prove by the editor of the newspaper and to introduce appellant’s published advertisements therein, showing that he professed to cure any. and all diseases, and inviting everybody afflicted to come to him for treatment, appellant objected, because such advertisement did not show that he was practicing, or offering to practice, medicine, and that in said advertisement he did not claim to be a physician or practitioner of medicines belonging to any school, and he expressly stated in said advertisements that he made no charge. In his advertisements, he called himself “Professor” Mueller; but the whole of it shows, and only shows, that he was offering to practice, and the testimony by the witnesses shows that he did actually practice, medicine on men, women, and children, and that was his profession.

He also objected to this testimony, because the state had not then shown that he treated the three persons named in the first count of the indictment. This evidence was clearly admissible.

The state introduced numerous witnesses who testified that at various and sundry-times, about the time charged in the indictment, appellant treated them for various ailments and diseases. This was objected to, because the indictment did not specifically name these persons or either of them as the ones whom he treated. This testimony was clearly admissible as tending to prove the state’s ease as alleged by either and both of said counts.

By another bill he objected to the testimony of one witness, who swore that after his treatment, in the presence of appellant, he paid to appellant’s wife some monfey therefor, and that she accepted it, after he had offered it to appellant directly and appellant had declined to take it, because by such proof the wife would be thereby indirectly testifying against her husband. There was no error m permitting this testimony. Even if there had been, the uncontradicted testimony by many other witnesses showed that they had paid to appellant, directly and indirectly, money and other things for his treatment of them.

' The questions arising in this ease have been so often discussed and decided against appellant that we deem it unnecessary to discuss any of them again. This ease in no way differs from the many cases this court has considered and uniformly affirmed under prosecutions under this statute. See Collins v. State, 152 S. W. 1047, recently decided.

We have carefully considered all of appellant’s complaints. The testimony, is uncon-troverted, is amply sufficient, and no other verdict, under the testimony, could or should have been rendered against appellant than that of conviction.

The judgment will be affirmed.  