
    BARRETT v. STATE.
    (No. 11738.)
    Court of Criminal Appeals of Texas.
    June 6, 1928.
    1. Criminal law «5=>l 117 — Where issue of venue was raised by motion for instructed verdict, point was properly presented on appeal under bill of exception covering evidence (Code Cr. Proo. 1925, art. 847).
    Where issue of venue was raised in trial court by motion for instructed verdict, point was properly presented on appeal under bill of exception certified by judge as containing all of evidence upon issue under Code Cr. Proc. 1925, art. 847, providing that reviewing court shall presume venue was proved unless matter was made issue or contrary affirmatively appears from bill of exceptions. --
    2. Physicians and surgeons «5=>6(9) — State must allege and prove that defendant, accused of unlawfully practicing medicine, was resident of county in which prosecution is instituted (Pen. Code 1925, art. 739).
    In prosecution for unlawfully practicing medicine under Pen. Code 1925, art. 739, requiring practitioner to register in district clerk’s office in county where he resides in order to practice there, state must allege and prove that defendant resided in county where prosecution was had.
    3. Criminal Taw @=>564(5) — Evidence merely showing defendant’s residence in or near Cherokee held insufficient to establish venue in prosecution for unlawfully practicing medicine (Pen. Code 1925, art. 739; Code Cr. Proo. 1925, art. 847).
    In prosecution for unlawfully practicing medicine in county under Pen. Code 1925, art. 739, evidence that defendant lived in or near Cherokee without showing residence or practice of medicine in county in which prosecution was instituted held, insufficient to sustain venue where venue was put in issue, under Code Cr. Proc. 1925, art. 847.
    4. Criminal law @=5304(6) — Court cannot take judicial knowledge that Cherokee is in San Saba county or that person living near Cherokee is resident of county.
    Court cannot take judicial notice that town of Cherokee is in San Saba county or that person who lived near Cherokee lives in county.
    
      ■ Appeal from San Saba County Court; W. V. Dean, Judge.
    i D. D. Barrett was convicted of unlawfully ■practicing medicine, and be appeals.
    Reversed, and remanded for new trial.
    A. Cl Mueller, of Llano, and N. O..Walker, .of San Saba, for appellant.
    Black & Graves, Robert M. Turpin, and A. A. Dawson, State’s Atty., all of Austin, for tlie State.
   HAWKINS, J.

Conviction is for unlawfully practicing medicine. Punishment is by fine of $100 and imprisonment in the county jail for 24 hours.

Conviction was under the first Count of an indictment which averred that appellant practiced , medicine and treated one Ben Lewis in San Saba county, in which county it was averred appellant resided, without having registered in the district clerk’s office of said county the authority of appellant to so practice.

Appellant contends that this conviction cannot stand, (1) because the evidence fails to show that the offense, if any, occurred in San Saba county; and (2) because the evidence fails to show that appellant resided in said county.

Article 847, C. C. P., provides that this court shall “presume that the venue was proven in the court below * * * unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions approved by” the trial judge.

The issue was raised in the trial court by a motion for an instructed verdict, one ground of which was that the state had failed to prove venue, and the point is properly before us by a bill of exception certified by the trial judge as containing all the evidence upon the issue. Article 739, P. C., makes it necessary for one to practice medicine lawfully to have registered in the district clerk’s office in the county in which such practitioner resides his authority to so practice. The state alleged that appellant resided in San Saba county. Such averment was necessary. It was also indispensable that the state support such allegation by proof. Lockhart v. State, 58 Tex. Cr. R. 80, 124 S. W. 923; Marshall v. State, 56 Tex. Cr. R. 205, 119 S. W. 310; Young v. State, 74 Tex. Cr. R. 133, 167 S. W. 1112; Hicks v. State, 88 Tex. Cr. R. 438, 227 S. W. 302; Less v. State, 93 Tex. Cr. R. 155, 246 S. W. 382.

The only evidence found in the bill of exception — or, for that matter, in the entire statement of facts — touching the residence of appellant or that the offense was committed in San Saba county, is the testimony of Lewis, which, in substance, was that he lived “near Cherokee,” that he had known appellant about three years during which time appellant lived in “Cherokee”; that he paid appellant for his professional services in appellant’s office in “Cherokee.” There is no proof that said place was in San Saba county, and this court cannot take judicial knowledge that it was so situated, or that Lewis lived in said county because he testified that he lived “near Cherokee.” Boston v. State, 5 Tex. App. 383, 32 Am. Rep. 575; Stewart v. State, 31 Tex. Cr. R. 153, 19 S. W. 908; Terrell v. State, 41 Tex. 463; Hoffman v. State, 12 Tex. App. 406. Proof that the place mentioned was in San Saba county could have been easily made, if such was the fact, and attention of the court below was called to the matter at a time when the proof could have been supplied.

We have no option but to reverse the judgment and remand the cause for a new trial. 
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