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Tex.)

GALVAN V. STATE

875

his attorneys, who represented him at the counsel for inspection, the refusal of special time, and did in this court. The state ob- charges requested by defendant was proper. jects to the consideration of each of these

[Ed. Note. For other cases, see Criminal affidavits on that account.

Law, Cent. Dig. 88 2668, 2670; Dec. Dig. Onn This court, in

1056.] Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 7. HOMICIDE ww236 – MURDER-SUFFICIENCY 567, expressly held that affidavits made be

or EVIDENCE. fore the attorneys of either side were invalid In a prosecution for murder, evidence held and could not be considered. This decision to show that decedent, a three year old girl, rehas been followed and adhered to uniformly ceived fatal injury when flung into an adjoining

room by defendant. in a large number of cases since then. As

[Ed. Note. For other cases, see Homicide, presented, the court did not err in refusing Cent. Dig. $8 495-499; Dec. Dig. Om 236.] a new trial on the claimed ground of newly discovered evidence. Appellant himself made

Appeal from District Court, Atascosa no affidavit at all on the subject.

County; F. G. Chambliss, Judge. No error is pointed out that would author

Eustacio Galvan was convicted of murder, ize this court to reverse this case.

It is and he appeals. Judgment reformed and aftherefore affirmed.

firmed.

C. C. McDonald, Asst. Atty. Gen., for the

State. GALVAN v. STATE. (No. 3732.) (Court of Criminal Appeals of Texas. Oct. 27,

HARPER, J. Appellant was indicted, 1915.)

charged with murder, and, when tried, was 1. CRIMINAL LAW Cw1166—APPEAL-DENIAL convicted, and his punishment assessed at OF CONTINUANCE.

The denial of a continuance asked for ab- imprisonment in the penitentiary for life. sence of witnesses whose attendance was se- [1, 2] There are three applications for a cured presents no error.

continuance or postponement of the [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. $$ 3100-3102, 3107-3113; Dec. when called for trial. One was on account Dig. Om 1166.]

of the absence of Geo. Shaw, his mother, 2. CRIMINAL LAW On 596 — CONTINUANCE

Mrs. Shaw, and Pedro Herrera. Another GROUNDS-ABSENCE OF IMPEACHING WIT-was to secure the attendance of Dr. Will GibNESS.

son. The attendance of all these witnesses A continuance sought to secure the attendance of a witness whose testimony can only be was secured; consequently these two appliavailable to impeach a state's witness should cations present no error. The third applicabe denied.

tion was to secure the attendance of Calna [Ed. Note. For other cases, see Criminal Morales and Sam Alberts, who are alleged Law, Cent. Dig. 88 1328–1330; Dec. Dig. Em to reside in Bexar county, Tex. The return 590.] 3. WITNESSES Cww78—COMPETENCY.

of the sheriff of Bexar county shows that Evidence held to show that a witness was they could not be found in that county. As not defendant's wife and therefore competent the testimony, it is stated, expected to be to testify.

elicited from them, would only go to impeach [Ed. Note.-For other cases, see Witnesses, the state's witness Pabla Gaitan—that she Cent. Dig. $$ 195–200; Dec. Dig. Om78.]

made statements out of court different to 4.

TERATION-INDORSEMENT OF NAMES OF WIT- what her testimony would be and was on the NESSES.

trial-it is not of that material character The indorsement of names of witnesses up- that we can say the court abused his dison the back of an indictment after its return cretion in overruling the application. The into court was not an alteration invalidating it. rule is that, where the testimony sought

[EdNote and Information, Cent. Dig. $S 138-143; Dec. could only be available to impeach a state's Dig. Om 34.]

witness, who is to testify in the case, the con5. INDICTMENT AND INFORMATION Cw138_Ex- tinuance should be refused. Garrett v. State, CEPTION TO INDICTMENT FOR ALTERATION. 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W.

Where, the motion excepting to the indictment on the ground that it had been altered 108; Rodgers v. State, 36 Tex. Cr. R. 563, 38 after return was not sworn to, had no affidavit S. W. 184. When the witness Pabla Gaitan of any person attached thereto, and made no was on the witness stand, she was not quesspecific allegation that any changes were made tioned in regard to this matter. If she had after the indictment was returned into court, the indictment reading regularly in every re' been, she might have admitted making the spect, the claimed alterations being an erasure statements alleged to have been made by and blotch in the words "to die” and irregulari- her to Calna Morales and Sam Alberts, and ties in the figures "1914," overruling of the mo- if she had admitted making the statements, tion was proper.

[Ed. Note.-For other cases, see Indictment if the witnesses had been present, their tesand Information, Cent. Dig. $ 472; Dec. Dig. timony would not have been admissible. cm 138.]

[3] It is claimed the court erred in per6. CRIMINAL LAW Ow1056_RESERVATION OF mitting the witness Pabla Gaitan to testify,

GROUNDS OF REVIEW-REFUSAL OF SPECIAL as she was the wife of appellant. If she had CHARGES.

Where no exceptions were reserved to the been his wife, it would have been improper court's charge when submitted to defendant's) to permit her to testify. She testified:

“I was never married to Eustacio Galvan; being thrown into the room by appellant. we were just living together. I was married There is nothing suggested in the record and am now married_to another man, but he is not living with me. I have never been divorced whereby the child could have received the infrom him."

jury in any other way. Appellant himself testified:

The judge, in passing sentence, ignored the "I am not married to Pabla Gaitan. I am indeterminate sentence law, and sentenced married to another and different woman, and appellant to a fixed term of imprisonment. have never been divorced from that woman."

The judgment will be reformed so that the The court did not err in permitting the sentence will read that he be imprisoned in witness to testify.

the penitentiary for a term not less than five [4, 5] Appellant excepted to the indictment years nor longer than his natural life, and on the ground that changes had been made the clerk of this court will enter proper therein; that the names of witnesses had judgment. been placed on the back of the indictment

The judgment is reformed and affirmed. since it had been returned into court. This would not be an alteration of the indictment. The motion also states that on the face thereof there appears an erasure and

RICE V. STATE. (No. 3734.) blotch in the words “to die" and irregulari- (Court of Criminal Appeals of Texas. Oct. 27, , ties in the figures "1914." The original in

1915.) dictment is not sent to us for inspection, and 1. CRIMINAL LAW On 406_EVIDENCE-STATEthe indictment copied in the record is regu

MENTS OF ACCUSED. lar in every respect. There is no affidavit of

Where a police officer was merely making

an investigation as to defendant's possession of any person attached to the motion. It is not a sack containing medicines, and made no arrest sworn to, and no specific allegation that any until after the investigation, defendant's statesuch changes had been made since it was re- ments, after the officer had asked him to go with turned into court. Under such circumstanc- him, to the effect that he was taking the medi

cine to a certain place for delivery, the testies, the court did not err in overruling the mony of the one to whom defendant said he was motion.

to deliver it that he had never ordered it, and [6] There were no exceptions reserved to defendant's reply that such person knew he had the charge of the court when submitted to ordered it, were not inadmissible on the ground

that defendant was under arrest. counsel for inspection, and no complaint is

[Ed. Note. For other cases, see Criminal made to it even in the motion for a new trial. Law, Cent. Dig. $$ 785, 894–917, 920-927; Lec. In the motion for new trial there is com- Dig. Om 406.] plaint that the court erred in refusing to 2. LARCENY 40—COMPLAINT-MATTERS TO give the special charges requested by appel- BE PROVED lant, citing them by number. As the court's fraudulently took 500 asperine tablets, it was in

Under a complaint alleging that defendant charge was not in any manner excepted to, cumbent on the state to prove that the tablets no error is presented by the special charges taken were asperine, as this was descriptive; requested.

but it was not necessary to prove their exact [7] The only other complaint is that the number, as that was in no way descriptive, but

related solely to the quantity taken. evidence is insufficient. The state's testi

[Ed. Note.-For other cases, see Larceny, mony is that appellant came home angry; Cent. Dig. S$ 102, 126, 160; Dec. Dig. Om40.) that the little three year old girl was crying 3. CRIMINAL LAW 730—EVIDENCE-CHARon a pallet, and he picked her up and placed ACTER-ARGUMENT OF COUNSEL. her on the door of the stove or range, which The county attorney's statement that he did had fallen to the floor; that the door was not know whether it was the first time defend

ant had been charged with an offense presented hot, and the little girl began to cry, and be no error, where the court sustained the objecgan urinating; that he picked the child up tion that, as defendant had not put his characand threw her some eight or ten feet into ter in issue, the state could not attack it, and the next room; the child was picked up in instructed the jury not to consider it, and gave

the defendant's special charge. a dying condition. Dr. McDuff, a few days

[Ed. Note. For other cases, see Criminal after the little girl was buried, had the body Law, Cent. Dig. 8 1693; Dec. Dig. 730.] exhumed, and he testifies:

4. CRIMINAL LAW Om 829–INSTRUCTIONS-RE“Its head was cracked. I clipped the skin on

QUESTS COVERED. its head, and pulled its skull apart, and made

In a prosecution for larceny, where the a careful examination of the same. This child court instructed, as to defendant's explanation has had a blow, or violence has been used on of his possession, that if he was in possession of its head to cause its death; that is, the head the property described in the information for had come in contact with some hard substance, delivery to some other person for his alleged emfrom which contact the skull was cracked, caus- ployer he was not guilty, it was unnecessary to ing blood to settle around the brain, and to clot, give special charges asked on that issue. which produced death. The leg which I speak of had been broken for some time prior to its Law, Cent. Dig. I 2011; Dec. Dig. Om 829.]

[Ed. Note. For other cases, see Criminal death."

No other cause is suggested for the death Appeal from Criminal District Court, Dalof the child than that it received the fatallas County; W. L. Crawford, Jr., Judge. injury when thrown into the next room by Jim Rice was convicted of theft, and he appellant. She died almost instantly after appeals. Affirmed.

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Tex.)

RICE v. STATE

877

C. C. McDonald, Asst. Atty. Gen., for the This is peculiarly applicable to the facts State.

in this case.

It is merely shown the officer

was making an investigation, and after the HARPER, J. Appellant was convicted of investigation he determined to and did arrest theft, and his punishment assessed at a fine appellant, but no arrest had been made nor of $5 and 30 days' imprisonment in the coun- determined upon until after the investigation. ty jail.

Girtman v. State, 73 Tex. Cr. R. 158, 164 S. [1] R. A. Aldrich testified: That he was an w. 1010; Hiles v. State, 73 Tex. Cr. R. 23, officer of the city of Dallas, and on the 20 163 S. W. 717; and cases cited in these two of February he saw appellant between San

opinions. Jacinto and Bryan streets with a sack on his

[2] Appellant seems to have made his deshoulder. That he examined the sack and fense on the theory that, as the complaint alfound it contained medicines, one article be-leged that he did fraudulently take 500 asing a bottle of asperine tablets, with the perine tablets of the value of $2.50, it was label on it: "500 Compound Tablets, Asper- incumbent on the state to prove that the ine, five grains, Manufactured and guaran- bottle contained 500 tablets, and no less. Obteed by the First Texas Chemical Company, jections to testimony along this line were Dallas, Texas."

That he asked appellant made, and special charges requested asking where he was going with this medicine, and the court to instruct the jury that, if the that appellant replied he was working for the chemical company, and was taking the state had not shown by the evidence beyond medicine to Williams drug store for deliv- a reasonable doubt that appellant took 500 ery. He asked appellant for the order sheet, asperine tablets, they would acquit. This is

not the law. and appellant made a pretense as if search

Of course, it was incumbent ing for it. When appellant did not find the on the state to prove that the tablets taken order sheet, Officer Aldrich told appellant he were asperine tablets, as this was descriptive would go with him to the Williams Drug of the property taken; but it was not necesCompany and see if he had ordered the sary to prove the exact number of tabletsmedicine. That when they got to the Wil- this is in no way descriptive of the properliams Drug Company he asked Dr. Williams ty, but relates solely to the quantity taken. if he had ordered the medicine, and Dr. Wil. And under such an allegation, if the state liams replied, “No, I never ordered anything proved appellant took 100, 200, or any other from the First Texas Chemical Company in number of asperine tablets, and they had a my life"; that he purchased from

purchased from the value, a conviction would be authorized. Griener-Kelly Drug Company. Appellant Jones v. State, 44 S. W. 162. replied to him, “You know you ordered this

[3] In another bill it is complained that in stuff,” when Dr. Williams replied, “I did not the argument the county attorney stated order that medicine." The officer says he that they did not know whether or not this then arrested appellant, and took the sack of was the first time appellant had been chargmedicine. A bill of exceptions was reserved ed with an offense; that the defendant had to the admissibility of all this testimony, he not put his character in issue, and the state contending that he was under arrest. The could not attack it. On objection, the court officer says he did not arrest appellant until at once sustained the objection, and instructafter the conversation with Dr. Williams, ed the jury not to consider the remarks, givand would not have done so had not the doc- ing the special charge requested by appeltor stated he had ordered no such medicines. lant. This presents no error. Mercer v. Appellant does not testify, and there is no State, 17 Tex. App. 467. testimony that he considered himself under [4] The court instructed the jury in regard arrest until after this conversation. So far to the explanation of defendant of his posas this record discloses, he went with the session of the property in the following lanofficer to the Williams Drug Company store guage: willingly, and there insisted that the Wil

"You are further instructed that if you find liams Drug Company had ordered the medi- and believe from the evidence beyond a reasoncine found in his possession. In the case of able doubt that the defendant was found in Hilcher v. State, 60 Tex. Cr. R. 180, 131 s. possession of certain asperine tablets, if any, deW. 592, Judge Davidson, speaking for the scribed in the information in this cause by Offi

a reacourt, held:

sonable doubt thereof, that at the time the de"It is true the officer said he did not intend to fendant was so found in possession of said let him get away until he had satisfied himself tablets, if any, that defendant had said tablets about the matter, and that after he satisfied in his possession for the purpose of delivering himself about the matter he did

arrest appellant. same to the Williams Drug Company or any Appellant was not conscious of the fact, so far other person, firm or corporation for J. S. Keene as the record is concerned, that he was to be of the First Texas Chemical Company, then, arrested, and it is not shown, as we understand if you so find, you will acquit the defendant this testimony, that he was under any duress, or and say by your verdict not guilty.”

he made the statement. therefore these bills do not justify this court special charges requested on this issue.

8. PHYSICIANS AND SURGEONS Omw 6–UNLAWHYROOP v. STATE. (No. 3642.)

FUL PRACTICE. (Court of Criminal Appeals of Texas. June 25, that any person is practicing medicine when he

Under Rev. St. 1911, art. 5745, providing 1915. Rehearing Denied Nov. 10, 1915.)

publicly professes to be a physician or sur1. INDICTMENT AND INFORMATION Om 137 geon or treats or offers to treat any disease, deJOINDER OF COUNTS-SUFFICIENCY.

formity, or injury by any system or method, or Where an indictment was in two counts, to effect cures thereof, and charges money or and one of them was good, there was no avail- other compensation therefor, it is not necessary able error in overruling a motion to quash, to complete the offense that the defendant shall where the conviction under the indictment was have held himself out as practicing medicine. general.

[Ed. Note.-For other cases, see Physicians [Ed. Note.-For other cases, see Indictment and Surgeons, Cent. Dig. $8 6-11; Dec. Dig. and Information, Cent. Dig. $$ 480-487; Dec. m.] Dig. Om 137.]

Appeal from Tarrant County Court; Jesse 2. PHYSICIANS AND SURGEONS O2-MEDICAL M. Brown, Judge. PRACTICE ACT-CONSTITUTIONALITY.

C. E. Hyroop was convicted of unlawfully The medical practice act is not unconstitutional.

practicing medicine, and he appeals. Af[Ed. Note. For other cases, see Physicians firmed. and Surgeons, Cent. Dig. § 2; Dec. Dig. Om2.]

Roy & Rowland, Mike E. Smith, and G. W. 3. CRIMINAL LAW 780 ACCOMPLICES Dunaway, all of Ft. Worth, for appellant. WHO ARE.

The fact that officers went to one charged C. C. McDonald, Asst. Atty. Gen., for the with practicing medicine unlawfully, and, though State. perfectly well, procured him to treat them for a supposed trouble in order to catch him, does HARPER, J. [1] Appellant was adjudged not make them his accomplices so as to require guilty of unlawfully practicing medicine. As a charge on accomplices.

[Ed. Note.-For other cases, see Criminal the second count in the information, at least, I.aw, Cent. Dig. $8 1859-1863; Dec. Dig. Om is not subject to the objection leveled at it, 780.]

and the conviction being general, and can be 4. PHYSICIANS AND SURGEONS Oum 6

UNLI- applied to either count, the court did not CENSED PRACTICE-MASSEURS – EVIDENCE err in overruling the motion to quash it. ADMISSIBILITY.

This count in the information is drawn in In a prosecution for unlawfully practicing medicine, where the defense is that defen:lant terms frequently approved by this court. was a masseur, and not a physician, evidence Collins v. State, 152 S. W. 1017, and cases for the state that he treated disease by other there cited. means than those usually ascribed to a masseur

[2] Neither is the medical practice act unis admissible.

constitutional, as has been heretofore held [Ed. Note.--For other cases, see Physicians, and Surgeons, Cent. Dig. $s 6-11; Dec. Dig. by this court and the United States Supreme

Court. Collins v. Texas, 223 U. S. 288, 32 5. PHYSICIANS AND SURGEONS Omw 6–LICENSE Sup. Ct. 286, 56 L. Ed. 439.

TO PRACTICE – "PRACTICING MEDICINE'- R. E. Tyler testified that he went to the "PHYSICIAN."

office of appellant, and complained that he Under Rev. St. 1911, art. 5745, providing had appendicitis, and told appellant that he that any person is “practicing" medicine when he publicly professes to be a physician or sur- had had a violent attack some five weeks geon or offers to treat any disease, deformity, before his visit. Appellant told him he did or injury by any system or method, or to effect not look like a man that had appendicitis, cures thereof, and charges money or other com- but that he was suffering from inflammation pensation therefor, one professing to be a masseur is a "physician," where he professes to of the colon, and proceeded to treat Tyler for cure diseases or disorders.

that affliction, saying he could cure him in a [Ed. Note.-For other cases, see Physicians little while. Appellant first gave Tyler an and Surgeons, Cent. Dig. $$ 6–11; Dec. Dig. enema, saying it was necessary to wash out For other definitions, see Words and Phrases, and rolled two pillows, placing one under

bis stomach. He then had Tyler to lie down, First and Second Series, Practice of Medicine.] his hips, and the other under his chest, there 6. CRIMINAL LAW Ow406—BEST EVIDENCE- being nothing under the center of the body. ADMISSIBILITY.

On defendant's admission that a circular He then mashed him up and down, pushing was one used by him in advertising his business him clear to the table. After giving this as a masseur, the court properly admitted the treatment for awhile, he placed Tyler on ancircular in evidence to show the purpose for other table, and gave him an electric treatwhich he held himself out.

[Ed. Note.--For other cases, see Criminal ment with an electrode, later so using the Law, Cent. Dig. 88 785, 894-917, 920-927; Dec. electrode as to produce what is called the Dig. Om406.]

violet ray.

Without going into further de7. CRIMINAL LAW Cm400 - SECONDARY Evi- tails of the treatment, he told Tyler when DENCE.

leaving that he must eat nothing but soup Parol evidence of the contents of a circular and milk, and leave off all heavy diets, eswas properly rejected, where the circular itself pecially meat. could be put in evidence. [Ed. Note. For other cases, see Criminal

As a matter of fact, Tyler was not sick Law, Cent. Dig. $8 879-886, 1208-1210; Dec. with any disease or disorder when he went Dig. Onw 400.]

to see appellant, but went there at the in

Tex.)

FLETCHER V. STATE

879

stance of others to see whether or not ap- 1 Legislature in exempting a masseur in his pellant was practicing medicine, within the sphere of labor. provisions of the medical practice act, and [5] Appellant seems to think the treatment making a charge therefor. Tyler paid appel- must have been by administering medicines lant $3 for the treatment.

before he would be included within the proG. W. Day testified he went with Tyler, hibition of the law. Article 5745 of the Rev. and testifies to, in substance, the same state Statutes reads: of facts as did Tyler.

“Any person shall be regarded as practicing [3] Appellant contends this made them ac- medicine within the meaning of this law : complices, and the court should have so in- cian or surgeon and shall treat, or offer to

“1. Who shall publicly profess to be a physistructed the jury. These men, knowing or treat, any disease or disorder, mental or physibelieving that appellant was practicing med cal, or any physical deformity or injury, by icine in violation of law, went there to de- any system or method, or to effect cures thereof;

"2. Or who shall treat or offer to treat any tect him, and under no rule of law we know disease or disorder, mental or physical, or any of, would their acts constitute them accom- physical deformity or injury by any system or plices.

method, or to effect cures thereof and charge [4] Appellant objected to the testimony of therefor, directly or indirectly, money or other

compensation." Joseph Winterman who testified: That ap McEachin's Rev. Stats. pellant treated him for an affection of the This article was construed in Ex parte hand and arm. That his hand just hurt, elbow Collins, 57 Tex. Cr. R. 2, 121 S. W. 501, and ached, and muscles of the arm hurt. Ap- the construction therein is the correct one pellant treated him for some time, and charg- and has always been adhered to. ed him $25. He gave Winterman an electric

If appellant could have proven that the treatment with a battery, and also gave him particular sphere of a masseur was “manipwhat is termed a "hot-air” treatment, put- ulating, stroking, kneading, tapping, or beatting the hand in a "sweat box.” That ap- ing the body by hands or mechanical means," pellant told him he could cure him, but he this would not have embraced the treatment did not do so, although he underwent treat- shown to have been given Tyler on his visit ment for some two or three months. Appel- to his office, and would be immaterial in this lant's contention was that he was a "mas-case. seur," and therefore did not have to obtain

[6-8] As appellant admitted the circular and register a certificate. As this was his introduced in evidence was one he used for contention, it was permissible for the state advertising purposes, the court did not err to show that he was treating disease by oth- in refusing to sustain his objection to its ader means and methods than that usually missibility. This would likely show in what ascribed to a masseur, and the court did way he held himself out. Of this we cannot not err in admitting this testimony, nor in judge; for, although it was introduced in admitting that he had an account at a drug evidence, it is not contained in the record. store for medicines, and in one instance had The circular, when introduced, would speak prescribed and furnished a salve for a sore for itself, and it was not error to refuse to on the leg of a patient.

permit witnesses to testify as to its contents. The testimony of Tyler and Day was clear. There does not appear to have been used ly admissible, and the objections urged to any terms needing explanation; at least the certain portions thereof are untenable. bill does not so state nor contend. The fact

The testimony of the witnesses Brown, he did not hold himself out as a "physician Castello, and Day, excluded by the court, and surgeon” would not prevent his convicpresents no error. Appellant does not state tion if he practiced medicine within the that he expected to or could have proven by meaning of that term as defined in the Rethe witnesses that the treatment given by vised Statutes. him to Tyler, and which he admitted giving, We have carefully read each of the bills was the treatment of a “masseur" in his par- of exceptions, and are of the opinion that ticular sphere of labor. It is true be offered none of them present error, and the judgment to prove by these witnesses that a "mas- is therefore affirmed. seur" treatment was good for certain character of ailments, but the fact that he advertised and held himself out as a masseur would not prevent the state from showing, if FLETCHER v. STATE. (No. 3716.) it could, that he treated his patients by other (Court of Criminal Appeals of Texas. Oct. 20, means than those customarily used by a

1915. Rehearing Denied Nov. 10, 1915.) masseur in his particular sphere of labor.

1. PROSTITUTION C1-PROCURING-EVIDENCE The giving of enema treatment by electric

-SUFFICIENCY. machinery, and by the use of a hot-air ap

In a prosecution against defendant for unparatus, does not come within the means and lawfully giving the name of his wife to another modes usually ascribed to the sphere of a for the purpose of enabling the latter to have masseur in the treatment of a disease, and cient to sustain a conviction.

sexual intercourse with her, evidence held suffias used by them aforetimes, and could not

[Ed. Note.-For other cases, see Prostitution, come within the exemption as defined by the Cent. Dig. f 4; Dec. Dig. Om4.]

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