Maier v. State , 90 Tex. Crim. 459 ( 1921 )

The indictment charges that the appellant "did then and there unlawfully engage in the practice of medicine and offer to engage in the practice of medicine for hire upon a human being, to-wit: upon Mrs. Guy Hooker without having registered in the office of the District Clerk . . . a certificate," etc. The indictment was properly drawn under Chapter 6, Title 12 of the Penal Code. The original indictment accompanies the record in support of the contention, that on its face it bears evidence of such alteration or interlineation as to vitiate it. The instrument is typewritten, and the form suggests that in writing it the letters "Mrs." preceding the name "Guy Hooker" were inserted. No evidence was offered, and we think from the instrument no such presumption arises as would condemn it. The inserted letters bear the appearance of having been written with the same typewriter, and as the matter impresses us, nothing is disclosed throwing suspicion upon the indictment. It is said:

"Where an interlineation or erasure is in the same handwriting and written with the same ink as the balance of the deed, the presumption, in the absence of any other proof, is that it occurred prior to the execution and delivery or at least that no inference arises to require explanation."

Cyc. of Law Proc., Vol. 12, page 255. Illustrative cases will be found in the note under the text.

The evidence reveals, without conflict, that the appellant was consulted and upon examination of Mrs. Hooker, diagnosed her ailment as resulting from misalignment of certain joints of the vertebrae in her spine; that he was known as a chiropractor; that he treated Mrs. Hooker by using a course of "adjustments" for which he charged and was paid compensation; that he used no medicine or surgical instruments, and that following the treatment her, condition improved.

It was also shown that he had not registered his certificate as required by the statute. Penal Code, Article 750.

Various criticisms to the charge are made, based upon exceptions and special charges presented upon the trial. From an academic point of view, doubtless, the charge might have been improved by following some of the suggestions embraced in the criticisms mentioned, but to our mind, it is apparent that such changes would have produced no practical results. The facts constituting the elements of the offense and its commission by the appellant were testified to by witnesses. They were not controverted by any testimony. No discrediting facts were introduced or suggested which would authorize the jury to disregard the testimony. Without arbitrarily disbelieving the evidence, a conviction was a necessary result. No change was suggested with reference to the charge which would or could, in our judgment, have affected the jury's assessment of the punishment.

The court, in his main charge, submitted the true issues to the jury in a language which we think was unexceptional. His quoting of definitions given by Article 755 of the statute on the practice of medicine may have been superfluous. Both phases of the statute were embraced in the indictment and in the proof, however, that is, "offering to treat" and "treating Mrs. Hooker." We see no reason why a conviction might not have been had upon either. The circumstances show that he was holding himself out as what is known as a chiropractor, a term not unknown to the law. Hicks v. State, 88 Tex.Crim. Rep., 227 S.W. Rep., 302. As such he diagnosed and treated Mrs. Hooker.

Pretermitting a further discussion of details of the charge or the criticism addressed thereto, we will say that after a careful examination of them and the entire record, we are impressed with the conviction that the records reflects nothing indicating that the trial of the appellant was otherwise than fair and impartial, but that, on the contrary, it seems manifest that such irregularities as are complained of, granting the technical accuracy of the complaint of them, could have produced no result prejudicial to the appellant. Such being our conclusion, our duty to affirm the case is imperative, made so by the statute, Article 743, Code of Crim. Proc., as often construed in the decisions noted thereunder in Vernon's Texas Crim. Statute, vol. 2.

The judgment is affirmed.

Affirmed.

ON REHEARING. December 21, 1921.