Price v. State , 40 Tex. Crim. 428 ( 1899 )

Appellant was convicted of practicing medicine as a physician, for pay, without first obtaining a certificate of professional qualification from an authorized board of examiners, etc., and his punishment assessed at a fine of $50, and prosecutes this appeal.

The following is, in substance, all the evidence introduced on the trial: A certificate of the Mississippi board of health, as follows: "No. 298. The State of Mississippi. Office of Mississippi State Board of Health. Know all men by these presents, that Isaac Price, who, according to his letter of application on file in this office, was born in Mississippi, thirty-nine years of age, who resides in Pontotoc County, and whose postoffice address is Mudcreek, and who has spent five years in professional studies under the supervision of the University of Nashville, Medical College of Tennessee, as preceptor (whose postoffice address is Nashville, Tenn.), and who attended one course of lectures at University of Nashville, Tennessee, Medical Schools, who did graduate at Med. Department, Medical College, and who has spent only during course of lectures in hospital, and has practiced medicine four years, and has chosen as his school of practice that of the regular physician, and refers concerning his moral character to Dr. A.J. Hall and Mr. W.L. Sonter of Pontotoc, Miss., has made application for license to practice medicine in the State of Mississippi. Therefore, by authority in section seventeen of an act to regulate the practice of medicine in the State of Mississippi, approved February 28, A.D. 1882, the board of health of the State of Mississippi do hereby license the aforesaid Isaac Price to practice medicine in the State of Mississippi. Issued by order of the Mississippi State board of Health, this twenty-fifth day of April, A.D. 1882. [Seal.] Wirt Johnson, Secretary Mississippi State Board of Health." Appellant presented this certificate to Dr. J.B. Salmon, a member of the board of medical examiners for the Forty-second Judicial. District of Texas, which district includes Young County, where appellant resided at the time the prosecution was instituted, who granted appellant temporary license to practice medicine. At the expiration of said temporary license it was extended by said Dr. Salmon until the regular meeting of the board of medical examiners for said judicial district. Subsequent to the giving of this temporary certificate and extension of the same, William M. Powell, secretary of the board, and the said J.B. Salmon, a member thereof, indorsed on the back of the certificate that appellant had theretofore presented to said Salmon, from the Mississippi board of health, the following: "Wm. M. Powell, M. D., Sec'y. Ex. Board. J.B. Salmon, M. D., Mem. Ex. Board. Members of Board of Medical Examiners for the 42nd Judicial District of Texas. This August, 1st, 1894. Done by order of the board." In explanation of the foregoing indorsement upon the certificate, Dr. Salmon testified: "I am a member of the medical examining board of the Forty-second Judicial District of Texas. I know defendant, Dr. Price. He applied to me for a temporary license to practice medicine in this State, and after examination I granted it to him in all the branches prescribed by law. Afterwards he made a personal application for a permanent certificate from the board. [Here witness was handed the original certificate of Dr. I. Price from the Mississippi board of health.] I know Dr. Powell; he lives in Albany, and is secretary of the board. The signatures on the back of this instrument are his and mine, and were placed there after Dr. Price was examined as to his qualifications to practice. When an applicant came before the board without any certificate, we would examine him and grant a certificate, but when he had one we indorsed it as this was done. After being indorsed by Dr. Powell and myself, it was returned to Dr. Price. Dr. Powell was not present when Dr. Price was examined by me. I was the only member of the board present. He paid the examining fees." Appellant, in substance, stated that he came to Texas about four years ago, and learned through Dr. J.B. Salmon that he would have to be examined and get a temporary license. Appellant did so, and filed the same in the clerk's office. He afterwards applied to the board of medical examiners for a permanent certificate, and gave them his certificate from the Mississippi board of health. The examiners, to wit, Powell and Salmon, took that certificate and made the indorsement upon the same above copied, and gave the same back to appellant as his certificate, whereby he was authorized to practice medicine; that appellant took his certificate, and gave it to the district clerk for record, and paid the fee for recording the same. It was returned to appellant by the clerk, and appellant stated that he never knew that it had not been properly recorded, until after he was indicted. A.T. Gay, the district clerk of Young County, stated: "I know defendant, and made the record of his certificate when first presented. The Mississippi certificate was recorded me when he came to the county, and I also recorded this temporary certificate. After be brought this certificate back to be recorded again, — that is, the one purporting to be the permanent certificate, — I started to record it, but misplaced it in some way, and did not get all the indorsements on the back of it recorded. The indorsements on the back of the certificate were on there when the same was presented to me the last time. It is my fault that it is not fully recorded."

It appears from the foregoing statement of the facts that appellant presented his Mississippi certificate to two of the medical examiners, and they indorsed their names upon said certificate for the purpose of certifying that they indorsed all the contents of the Mississippi certificate, and that their indorsement on that certificate was intended as an original certificate, authorizing appellant to practice medicine in the State of Texas. It is true that but one of the board examined appellant, but the other, in the manner above indicated, joined with Dr. Salmon in certifying that appellant was competent to practice medicine. Now, we concede that this certificate is not in regular form, but the clear intent of the examiners was to say, by their indorsement of the Mississippi certificate, that appellant was qualified to practice medicine. They gave it to him for that purpose; he took it for that purpose; he gave it to the clerk, and paid the fees for recording it, believing it was his authority to practice medicine, and did not know anything to the contrary until he was prosecuted in this case. Certainly the mere fact that the certificate was not written out in a formal manner should not operate as a conviction of appellant for practicing medicine without a proper certificate. The law does not prescribe the form of certificate. Under our law, no man can be convicted without a criminal intent, and around this principle all others gravitate. It appears from the statement of facts that appellant made an application to the board of examiners; that the board granted a certificate in compliance with the statute which says that any two of whom may grant the certificate. It is true that it is defectively worded, but certainly the witnesses would have a right to testify that their indorsement upon the certificate granted appellant by the Mississippi board was intended by the board of examiners to be appellant's certificate. Appellant received it, and filed it with the clerk for record, and has complied with all the law, so far as he is concerned. There is no law that each and every member of the board shall examine him. If one of the board examined appellant, and another member indorsed that examination by signing the certificate to that effect, the laws of this country would not punish appellant because both did not participate in the examination. Article 438, Penal Code, under which appellant was indicted, reads: "If any person shall practice for pay, or as a regular practitioner, medicine in this State, in any of its branches or departments, or offer or attempt to practice, without first obtaining a certificate of professional qualification from some authorized board of medical examiners, or without having a diploma from some accredited medical college, chartered by the Legislature of the State or its authority, in which the same is situated, he shall be punished by fine," etc.

Now, the question for us to decide is, does the certificate above quoted comply with the law? As far as affecting the criminal intent of appellant, we say yes. We have heretofore held that where a physician is prosecuted for failing to record his diploma, and he honestly believes that the same has been recorded, the prosecution could not be successfully maintained. Pettit v. State, 28 Texas Crim. App., 240. Furthermore, in a case wherein a party was prosecuted for carrying a pistol without having the proper authority, Judge Hurt, delivering the opinion of the court, used this language: "Now, we hold that this appointment, whether legal or not, was in its very nature strongly calculated to induce appellant to believe that he had a legal right to carry the pistol. It is not the object of the Code to punish under circumstances which clearly show there was no intention to violate the act. With this appointment, no doubt, appellant believed that he had the right to take a pistol with him in pursuit of the stolen horses." Applying this well known principle to the evidence before us, the record in this case discloses the fact that appellant had no criminal intent at the time he was charged with practicing medicine, without having a proper certificate. Defendant applied to the board, secured a certificate, carried it to the clerk for record, but the clerk failed to properly record it. He paid all the fees. These facts clearly, to our mind, indicate a total lack of any criminal intent. A long line of decisions by this court has upheld this salutary principle of law, that no man shall be convicted without a criminal intent manifested in the act. Neely v. State, 8 Texas Crim. App., 64; Hailes v. State, 15 Texas Crim. App., 93; Heskew v. State, 14 Texas Crim. App., 606.

We do not think appellant has violated the spirit of the law regulating the practice of medicine in the State of Texas. By reason of this fact, we do not deem it necessary to review the assignments of error. The judgment is accordingly reversed and the cause remanded.

Reversed and remanded.