
    ANDRUS v. STATE.
    (No. 10018.)
    (Court of Criminal Appeals of Texas.
    March 24, 1926.
    On Motion for Rehearing, June 16, 1926.
    On Appellant’s Motion for Rehearing, Oct. 20, 1926.)
    1. Criminal (aw &wkey;>829(l).
    Refusal of defendant’s requested instruction was not error where his other instruction to same effect was given.
    On Appellant’s Motion for Rehearing.
    2. Appeal and error <&wkey;>833(3).
    Ordinarily, court will not entertain motions for rehearing after 15 days from judgment, but it may do so during the term at which rendered, where lower court has not entered judgment before recall of mandate.
    Commissioners’ Decision.
    Appeal from Runnels County Court; Paul Trimmier, Judge.
    C. L. Andrus was convicted of unlawfully practicing medicine, and he appeals.
    Affirmed on rehearing.
    • Ben L. Cox, of Abilene, W. D. Jennings, of Miles, and Parish & Crager, of Ballinger, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense Is unlawfully practicing medicine, and the punishment is a fine of $100 and one minute in jail.

The information charges that the appellant did treat, visit, and prescribe for W. E. Beavers, and charge money therefor, for a disease and disorder without first having obtained and received a license, etc. The court instructed the jury that the practice of medicine as defined by the state of Texas includes every method or system used in treating any disease or disorder, injury, or deformity whether said treatment consists of the use of mechanical means or in the administration of drugs or by other means or methods, and further instructed them that, in order for the defendant in this case to be guilty, it was not necessary that he should have prescribed or administered any medicine or drugs, but told them, if they believed from the evidence beyond a reasonable doubt that the defendant did, on the 10th day of March, 1925, or any day thereafter up to and including the 12th day of May, 1925, in Runnels county, Tex., treat, or offer to treat, any disease, disorder, deformity, or injury by the application of his hands on the body of any human being, and charged therefor money or other compensation, he would, within the meaning of the statutes of this state, be a practitioner of medicine. Immediately following this charge the jury were instructed as follows:

“Now, bearing in mind the foregoing instructions, if you believe from the evidence that the defendant did, on the 10th day of March, 1925, or any day thereafter up to and including the 12th day of May, 1925, practice medicine in Runnels county, Tex., in violation of the provisions of the law herein given you, you will find him guilty and assess his punishment at a fine in any sum of not less than $50 nor more than $500, and by imprisonment in the county jail for a term not exceeding six months.”

The charge nowhere instructed the jury that before the appellant could be convicted they must find that he had treated W. F. Beavers, the person whom the information charges that he did treat. The appellant levelled the following exception at the court’s charge:

“Said charge is erroneous in that the jury is permitted to convict defendant whether he practiced medicine or not upon W. F. Beavers as alleged in the information; the jury being instructed that they might convict if defendant treated, or offered to treat, any disease in Runnels county, March 10, 1925, or thereafter up to May 12, 1925, the charge wholly failing to limit the offense to that charged in the information.”

By special charge No. 1 appellant sought to have the jury told:

“You are further instructed that the complaint and information in this case allege that defendant practiced medicine upon the witness W. F. Beavers; now, if you find that the state Fas failed to establish beyond a reasonable doubt that he did practice medicine upon the said Beavers, you will acquit the defendant.”

Appellant’s exception as above stated to the charge was overruled, and the court refused to give the special charge above quoted. In this the court was in error. Under the information in .this case appellant could only be convicted in the event the jury believed beyond a reasonable doubt that he practiced medicine upon W. F. Beavers. It was his right to have the jury told this in appropriate language. The special charge refused served this purpose, and it or one of similar import should have been given.

For the error above discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

BERRY, J.

The state, in its motion for rehearing, calls our attention to the fact that, while the court in his main charge instructed the jury as stated in our original opinion and failed to give special'charge No. 1, as stated therein, yet that he did give special charge No. 4, which is in effect the same as special charge No. 1, which was refused. A further examination of the record convinces us that the state is correct in this contention and that we were in error in reversing the case because of failure to give said special charge No. 1.

Special charge No. 4, given by the court at the request of the appellant, fully instructed the jury to the effect .that they could not convict the appellant unless they believe that the appellant treated or offered to treat W. F. Beavers, the party whom the complaint and information charged that he did treat. We deem it proper to say that the attorneys representing the state did not brief this question on original submission, and the error in overlooking this special charge No. 4‘ was due to the peculiar manner in which the record shows that it was given.

Believing that we were in error in the original opinion, the state’s motion for a rehearing is granted, and the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Appellant’s Motion for Rehearing.

HAWKINS, J.

In his motion appellant does not question the correctness of our opinion on the state’s motion for rehearing, but only urges that such motion was not filed in time, and that this court lost jurisdiction when the mandate was issued from this court and was filed in the lower court; hence was without authority to act on the state’s motion. If the trial court had entered judgment in the case after the mandate reached there, and before its recall, the question would be serious. If we can consider the affidavit attached to appellant’s motion for any purpose, it only shows that an agreement for the disposition of the case was entered into, but no order or’ judgment making it effective was ever entered or rendered. Ordinarily this court will not entertain motions filed by either the state or appellant after expiration of 15 days from the date of the judgment on which rehearing is sought. Fitts v. State, 98 Tex. Cr. R. 146, 264 S. W. 1006, and authorities ther.ein cited. On the other hand, it cannot be questioned that this court has control over its judgments during the term at which rendered. Kraft v. State, 86 Tex. Cr. R. 484, 217 S. W. 1038; McCorquodale v. State, 54 Tex. Cr. R. 344, 98 S. W. 879.

Appellant’s motion for rehearing is overruled. 
      (^^vFor other eases see samó topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     