Ellison v. State , 6 Tex. Ct. App. 248 ( 1879 )

White, J.

Appellant was charged by indictment with illegally practising medicine in the county of Coleman, on the fifteenth day of August, 1877, “ before he had furnished to the clerk of the District Court * * * his certificate of qualification for the practise of medicine, under the act of May 16, 1873.”

Now, the act of May 16, 1873, is expressly repealed by the sixth section of the act of the Fifteenth Legislature, entitled “An act to regulate the practise of medicine,” approved August 21, 1876 (Laws 15th Leg. 232) ; and this, latter act was in full force and operation at the date of the alleged offence in this case. There is no allegation that-any of its requirements have been violated, or that the defendant was not legally qualified to practise medicine uncler its provisions at the time set out in the indictment.

The only law defendant is charged with violating is a. repealed law, and to charge one with the violation of a repealed law does not charge him with an offence. It. follows that the motion in arrest of judgment should have been sustained, and the indictment quashed.

There are other glaring defects apparent on the faces of the record, which are, any one of them, fatal to the validity of this conviction, especially the want of a plea for the defendant, the want of proof of venue, and the total failure of the proof to sustain the charge in the indictment.

The judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.