Baker v. State , 91 Tex. Crim. 521 ( 1921 )

Our statute declares that: "The repeal of a law, where the repealing statute substitutes no other penalty, will exempt from punishment all persons who may have offended against the provisions of such repealing (repealed) law, unless it be otherwise declared in the repealing statute." (Penal Code, Art. 16.)

This statute has the effect of terminating the prosecution at any stage before final judgment. Vernon's Texas Crim. Statutes, Vol. 1, p. 11. This statute and rule are invoked by the appellant in the instant case upon the ground that they are brought into operation by the enactment of Chapter 51 of the Acts of the Thirty-seventh Legislature, 2d Called Session (p. 159), in which chapter the practice of optometry is defined and regulated. The definition, (Sec. 1), is in this language: "The practice of optometry is hereby defined to be the employment of objective or subjective means, without the use of drugs, for the purpose of ascertaining and measuring the powers of vision of the human eye, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision. Provided that nothing herein shall be construed to permit optometrists to treat the eyes for any defect whatsoever in any manner nor to administer any drug or drugs externally or internally, nor to prescribe drug or drugs or physical treatment whatsoever, unless such optometrist is a regular licensed physician or surgeon under the laws of this State."

Section 15 reads thus: "Any one practicing optometry in this State, who shall prescribe or fit lenses for any diseased condition of the eye or for any disease of any other organ of the body that manifests itself in the eye, shall be deemed to be practicing medicine within the meaning of the statutes of this State defining the practice of medicine and prohibiting the practice thereof without a license, and any such person possessing no license to practice medicine shall be liable to prosecution for the unlawful practice of medicine without a license and, upon conviction thereof, shall be subject to the same penalties or punishment as is prescribed by law for the practice of medicine without a license."

And Section 17 reads thus: "Nothing in this Act shall be construed as giving authority to use, prescribe, sell or offer for sale any lotions, salves, or medicines of any kind or description, practice medicine and surgery within the provisions of Chapter XCIII, Acts of the Thirtieth Texas Legislature, or as conferring any title or appellation in a sense to indicate the practice of medicine and providing that the title of Optometrist or practice, as defined in Section 1 of this Act, shall not be construed as practicing medicine or surgery or indicating the practice of medicine or surgery."

The chapter of the Acts of the Thirtieth Legislature referred to is identical with Chapter 6, Title 12 of the Penal Code relating to the unlawful practice of medicine.

Section 18, reads: "All laws and parts of laws in conflict with the provisions of this Act be and the same are hereby repealed."

By reference to our original opinion will be found the charge upon which appellant was prosecuted. The evidence discloses that no drugs were used by him in the examination of the eyes, and no treatment involving the use of drugs was prescribed.

Under the broad provisions of the Medical Practice Act we construed what he did, however, to come thereunder. Pending this appeal the Thirty-seventh Legislature has passed the optometry statute, some of the provisions of which are quoted above. The Medical Practice Act is not repealed thereby. On the contrary, it is referred to in the optometry statute, and provides that certain things shall be regarded as practicing medicine. But by the plain provisions of the Acts of the Thirty-seventh Legislature the particular acts done by appellant, and which were held by us to have been "practicing medicine," were included in the definition of "optometry;" and the last clause of Sec. 17, supra, reads: "And providing that the title of Optometrist or practice, as defined in Section 1 of this Act, shall not be construed as practicing medicine or surgery, or indicating the practice of medicine or surgery."

The purpose and effect of Article 16, P.C. is to relieve an accused from suffering the penalty for an Act denounced by our law as criminal when the charge is made and the trial had, but which before final judgment is no longer an offense. (See cases collated under said Article in Vernon's P.C.)

The acts for which appellant was convicted being no longer an offense against the Medical Practice Act by the express terms of the Optometry Act of the Thirty-seventh Legislature, we are necessarily constrained to hold that the provisions of Article 16 of the Penal Code inures to his benefit.

For the reasons stated, the motion for rehearing is granted; the judgment of conviction is set aside, and the prosecution ordered dismissed.

Dismissed.

ON REHEARING. April 26, 1922.