Gay v. State , 79 Tex. Crim. 305 ( 1916 )

Appellant claims that article 757, Penal Code, was not a part of the Act of 1907, and not a law in whole or in part from the passage of said Act until it was placed in the revision of 1911, and contends that ever since then it has been lawful for any physician of any of the classes mentioned therein to practice without any verification, or other, license, and as he is embraced within said exemptions, that article 752 is, therefore, in applicable to him, and he can legally practice without any license and the record thereof. His whole defense was based on that idea. If his contention had been correct, this case should necessarily be reversed, because he offered, and the court excluded, his, and other, testimony, as shown in the original opinion, which would have brought him within the exemptions of article 757.

In view of his urgent insistence, we will further discuss the question. To do so, it will be proper to mention briefly but generally the legislation on the subject, and the reasons therefor.

To protect the lives, and preserve the health, of the people, is one of the chief objects and duties of government. In order to help do this our Legislature, since the establishment of our State government, has all along, and from time to time, enacted laws to prevent the incompetent person, the fakir and the fraud, from deceiving the sick and afflicted under their false claim to "cure all" and from fleecing them of their money, and at the same time fully provide for the proper license of those who prepare themselves by a thorough study and knowledge of the human body, and the diseases and ailments to which it is subject, and thus prepare themselves to properly administer to, and treat, the sufferer. One of the best methods theretofore devised to accomplish this, and let all the people know who were competent and authorized, was to require, as a prerequisite to practice, a proper authority duly recorded in the district clerk's office of the county of the residence of the practitioner, which any and everyone could see for himself, and that method still prevails. At an early day, a diploma from a reputable medical college, duly so recorded, was required, and perhaps was all that was then required. It was not long till the fakir and fraud took advantage of this, and procured and recorded diplomas from medical colleges, which sold diplomas outright to any and everyone who paid the price, and without any previous study or preparation. Also, it developed that many young men, for lack of means, or other reasons, were unable to attend colleges, and procure a diploma, but who studied at home and under the instruction and assistance of local physicians fully prepared themselves to practice as well as those who attended colleges and procured a diploma. For all such the Legislature provided medical examining boards, where such young men could stand examinations, and procure license to practice without any diploma. In the course of time another class had grown up, which consisted of those worthy and competent practitioners, who without license or diploma, by many years of study and practice, had demonstrated their competency to practice. All three of these classes were duly provided for and protected by the various enactments of the Legislature, from time to time, but some or all persons in these classes were required to do certain things in order to evidence, or establish, the fact of their being embraced within one or the other of these exemptions. It is unnecessary to cite these various Acts of the Legislature.

As stated in the original opinion, the said Act of 1907 repealed all previous legislation on the subject, and by that Act regulated the whole matter.

Section 4 of that Act is: ("From and after the passage of this Act) it shall be unlawful for anyone to practice medicine in any of its branches upon human beings within the limits of this State who has not registered in the district clerk's office of the county in which he resides his authority for so practicing, as herein prescribed, together with his age, postoffice address, place of birth, school of practice to which he professes to belong, subscribed and verified by oath, which, if wilfully false, shall subject the applicant to conviction and punishment for false swearing as provided by law. The fact of such oath and record shall be indorsed by the district clerk upon the certificate. The holder of the certificate must have the same recorded upon each change of residence to another county, and the absence of such record shall be prima facie evidence of the want of possession of such certificate." In said revision that section is made article 750, Penal Code, literally, except the words, "From and after the passage of this Act," are omitted, and is preceded by these words: "Authority to practice registered in district clerk's office; change of residence recorded, where."

Section 6 of that Act is: ("Within one year after the passage of this Act) all legal practitioners of medicine in this State, who, practicing under the provisions of previous laws, or under diplomas of a reputable and legal college of medicine, have not already received license from a State Medical Examining Board of this State, shall present to the Board of Medical Examiners for the State of Texas documents, or legally certified transcripts of documents, sufficient to establish the existence and validity of such diplomas or of the valid and existing license heretofore issued by previous examining boards of this State, or exemption existing under any law, and shall receive from said board verification license, which shall be recorded in the district clerk's office in the county in which the licentiates may reside. Such verification license shall be issued for a fee of fifty cents to all practitioners who have not already received a license from the State Board of Medical Examiners of this State. It is especially provided that those whose claims to State licenses rest upon diplomas from medical colleges recorded from January 1, 1891, to July 9, 1901, shall present to the State Board of Medical Examiners satisfactory evidence that their diplomas were issued from bona fide medical colleges of reputable standing, which shall be decided by the Board of Medical Examiners before they are entitled to a certificate from said board. This board may, at its discretion, arrange for reciprocity in license with the authorities of other States and Territories having requirements equal to those established by this Act. License may be granted applicants for license under such reciprocity on payment of twenty dollars." In the revision, that section is made article 752 literally, except the omission of these words: "Within one year after the passage of this Act," and is preceded by these words: "Practitioner of medicine to receive verification license."

Section 15 of that Act is: "All certificates heretofore issued by any board of medical examiners in this State under any former law shall be and continue in full force and effect for one year after this Act shall take effect, but not afterward, and any person who may, when this Act shall take effect, be practicing medicine within this State under the provisions of existing laws or under any exception contained therein, but without license, may, for one year thereafter, but not longer, continue in such practice, without license; and all such certificates and all such rights to practice medicine shall be in all respects subject to the provisions of this Act as though issued or acquired under its provisions." In the revision, in place of that section, is article 757, reading: "The provisions of this chapter shall not apply to any person who has been regularly engaged in the general practice of medicine, in any of its branches or departments, in this State, for five consecutive years prior to January 1, 1875; nor to any person who may have legally qualified himself to practice medicine under the provisions of an Act entitled, `An Act to regulate the practice of medicine,' passed May 16, 1873; nor to all those who were practicing medicine in Texas prior to January 1, 1885; nor to all those who began the practice of medicine in this State after the above date, who have complied with the laws of this State, regulating the practice of medicine, in force." While the language of the two are not the same, fully the same exemptions are embraced in each. If appellant's contention should prevail, then article 752 would be a dead letter as to all those embraced in article 757, and the door to those unlicensed practitioners thrown wide open. No such intention by the Legislature can reasonably be drawn from said articles, nor the whole Act, nor the law as now contained in the revisions only.

Said articles must be construed together so that both shall stand, if that can be, and they must be considered in connection with the previous legislation, and the whole law now on the statute books. We think it clear, not only from all previous legislation, but also from said Act of 1907, and even the codes as now revised only, that no one can legally practice medicine, or the healing art or science, on human beings, by any system or method, with or without administering medicines and charge therefor, without first procuring a license to do so and recording it in the district clerk's office of his residence. And that this was the clear intent of the Legislature. It is seen that by said section 15 all the old physicians were there given a year, but no longer, to get the new verification license from the board created by it, without standing any examination. However, by placing said article 757 in the revision instead of said section 15, it was intended and only intended, they should still not be cut off entirely as section 15 provided, but given another opportunity to get a verification license by complying with said article 752, and they still have that opportunity. Appellant not having availed himself of the opportunity within the year after the Act of 1907 went into effect, and still not doing so after the law was re-enacted in the revision giving him still the opportunity, but practicing contrary to and in the face of the law, must suffer the consequences of his own acts.

Appellant now, for the first time, complains of what he claims are some informalities in the judgment. But we think the judgment sufficiently complies with the statute and the decisions. (Arts. 866-7-8, C.C.P.; Terry v. State, 30 Texas Crim. App., 408; Ex parte Dickerson, 30 Texas Crim. App., 448.)

The motion for rehearing is overruled.

Overruled.