his attorneys, who represented him at the time, and did in this court. The state obThe state objects to the consideration of each of these affidavits on that account. This court, in Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567, expressly held that affidavits made before the attorneys of either side were invalid and could not be considered. This decision has been followed and adhered to uniformly in a large number of cases since then. As presented, the court did not err in refusing a new trial on the claimed ground of newly discovered evidence. Appellant himself made no affidavit at all on the subject. No error is pointed out that would authorize this court to reverse this case. It is therefore affirmed. GALVAN v. STATE. (No. 3732.) (Court of Criminal Appeals of Texas. Oct. 27, 1915.) 1. CRIMINAL LAW 1166-APPEAL-DENIAL OF CONTINUANCE. The denial of a continuance asked for absence of witnesses whose attendance was secured presents no error. [Ed. Note.-For other cases, see Criminal counsel for inspection, the refusal of special charges requested by defendant was proper. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. 1056.] 7. HOMICIDE 236-MURDER-SUFFICIENCY OF EVIDENCE. In a prosecution for murder, evidence held to show that decedent, a three year old girl, received fatal injury when flung into an adjoining room by defendant. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 495-499; Dec. Dig. 236.] HARPER, J. Appellant was indicted, charged with murder, and, when tried, was convicted, and his punishment assessed at imprisonment in the penitentiary for life. [1, 2] There are three applications for a continuance or postponement of the case Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. when called for trial. One was on account 2. CRIMINAL LAW 596-CONTINUANCEGROUNDS-ABSENCE OF IMPEACHING WIT-was to secure the attendance of Dr. Will Gib NESS. A continuance sought to secure the attendance of a witness whose testimony can only be available to impeach a state's witness should be denied. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. 596.] 3. WITNESSES 78-COMPETENCY. Evidence held to show that a witness was not defendant's wife and therefore competent to testify. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 195-200; Dec. Dig. 78.] 4. INDICTMENT AND INFORMATION 34-ALTERATION-INDORSEMENT OF NAMES OF WIT NESSES. The indorsement of names of witnesses upon the back of an indictment after its return into court was not an alteration invalidating it. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 138-143; Dec. Dig. 34.] 5. INDICTMENT AND INFORMATION 138-ExCEPTION TO INDICTMENT FOR ALTERATION. Where, the motion excepting to the indictment on the ground that it had been altered after return was not sworn to, had no affidavit of any person attached thereto, and made no specific allegation that any changes were made after the indictment was returned into court, the indictment reading regularly in every respect, the claimed alterations being an erasure and blotch in the words "to die" and irregularities in the figures "1914," overruling of the motion was proper. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 472; Dec. Dig. 138.] 6. CRIMINAL LAW son. The attendance of all these witnesses was secured; consequently these two applications present no error. The third application was to secure the attendance of Calna Morales and Sam Alberts, who are alleged to reside in Bexar county, Tex. The return of the sheriff of Bexar county shows that they could not be found in that county. As the testimony, it is stated, expected to be elicited from them, would only go to impeach the state's witness Pabla Gaitan-that she made statements out of court different to What her testimony would be and was on the trial-it is not of that material character that we can say the court abused his discretion in overruling the application. The rule is that, where the testimony sought rule is that, where the testimony sought could only be available to impeach a state's witness, who is to testify in the case, the continuance should be refused. Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184. When the witness Pabla Gaitan was on the witness stand, she was not questioned in regard to this matter. If she had been, she might have admitted making the statements alleged to have been made by her to Calna Morales and Sam Alberts, and if she had admitted making the statements, if the witnesses had been present, their testimony would not have been admissible. [3] It is claimed the court erred in per1056-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: "I am not married to Pabla Gaitan. I am married to another and different woman, and have never been divorced from that woman." The court did not err in permitting the witness to testify. [4, 5] Appellant excepted to the indictment on the ground that changes had been made therein; that the names of witnesses had been placed on the back of the indictment 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 blotch in the words "to die" and irregularities in the figures "1914." The original indictment is not sent to us for inspection, and the indictment copied in the record is regular in every respect. There is no affidavit of any person attached to the motion. It is not sworn to, and no specific allegation that any such changes had been made since it was returned into court. Under such circumstances, the court did not err in overruling the motion. [6] There were no exceptions reserved to the charge of the court when submitted to counsel for inspection, and no complaint is made to it even in the motion for a new trial. In the motion for new trial there is complaint that the court erred in refusing to give the special charges requested by appellant, citing them by number. As the court's charge was not in any manner excepted to, no error is presented by the special charges requested. [7] The only other complaint is that the evidence is insufficient. The state's testimony is that appellant came home angry; that the little three year old girl was crying on a pallet, and he picked her up and placed her on the door of the stove or range, which had fallen to the floor; that the door was hot, and the little girl began to cry, and began urinating; that he picked the child up and threw her some eight or ten feet into the next room; the child was picked up in a dying condition. Dr. McDuff, a few days after the little girl was buried, had the body exhumed, and he testifies: "Its head was cracked. I clipped the skin on its head, and pulled its skull apart, and made a careful examination of the same. This child has had a blow, or violence has been used on its head to cause its death; that is, the head had come in contact with some hard substance, from which contact the skull was cracked, causing blood to settle around the brain, and to clot, which produced death. The leg which I speak of had been broken for some time prior to its death." No other cause is suggested for the death of the child than that it received the fatal injury when thrown into the next room by appellant. She died almost instantly after The judge, in passing sentence, ignored the indeterminate sentence law, and sentenced appellant to a fixed term of imprisonment. The judgment will be reformed so that the sentence will read that he be imprisoned in the penitentiary for a term not less than five years nor longer than his natural life, and the clerk of this court will enter proper judgment. The judgment is reformed and affirmed. RICE v. STATE. (No. 3734.) (Court of Criminal Appeals of Texas. Oct. 27, 1915.) 1. CRIMINAL LAW 406-EVIDENCE-STATEMENTS OF ACCUSED. Where a police officer was merely making an investigation as to defendant's possession of a sack containing medicines, and made no arrest until after the investigation, defendant's statements, after the officer had asked him to go with him, to the effect that he was taking the medicine to a certain place for delivery, the testimony of the one to whom defendant said he was to deliver it that he had never ordered it, and defendant's reply that such person knew he had ordered it, were not inadmissible on the ground that defendant was under arrest. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. 406.] 2. LARCENY BE PROVED. 40-COMPLAINT-MATTERS TO fraudulently took 500 asperine tablets, it was inUnder a complaint alleging that defendant cumbent on the state to prove that the tablets taken were asperine, as this was descriptive; but it was not necessary to prove their exact number, as that was in no way descriptive, but related solely to the quantity taken. [Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 102, 126, 160; Dec. Dig. 40.j 3. CRIMINAL LAW 730-EVIDENCE-CHARACTER-ARGUMENT OF COUNSEL. The county attorney's statement that he did not know whether it was the first time defendant had been charged with an offense presented no error, where the court sustained the objec tion that, as defendant had not put his character in issue, the state could not attack it, and instructed the jury not to consider it, and gave the defendant's special charge. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. 730.] 4. CRIMINAL LAW 829-INSTRUCTIONS-RE QUESTS COVERED. In a prosecution for larceny, where the court instructed, as to defendant's explanation of his possession, that if he was in possession of the property described in the information for delivery to some other person for his alleged employer he was not guilty, it was unnecessary to give special charges asked on that issue. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. 829.] Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Jim Rice was convicted of theft, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of theft, and his punishment assessed at a fine of $5 and 30 days' imprisonment in the county jail. [1] R. A. Aldrich testified: That he was an officer of the city of Dallas, and on the 2d of February he saw appellant between San Jacinto and Bryan streets with a sack on his This is peculiarly applicable to the facts in this case. It is merely shown the officer was making an investigation, and after the investigation he determined to and did arrest appellant, but no arrest had been made nor determined upon until after the investigation. Girtman v. State, 73 Tex. Cr. R. 158, 164 S. w. 1010; Hiles v. State, 73 Tex. Cr. R. 23, 163 S. W. 717; and cases cited in these two opinions. [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 state had not shown by the evidence beyond the chemical company, and was taking the 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 Of course, it was incumbent and appellant made a pretense as if search- not the law. 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 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 stuff," when Dr. Williams replied, "I did not order that medicine." The officer says he then arrested appellant, and took the sack of medicine. A bill of exceptions was reserved to the admissibility of all this testimony, he contending that he was under arrest. The officer says he did not arrest appellant until after the conversation with Dr. Williams, and would not have done so had not the doctor stated he had ordered no such medicines. Appellant does not testify, and there is no testimony that he considered himself under arrest until after this conversation. So far as this record discloses, he went with the officer to the Williams Drug Company store willingly, and there insisted that the Williams Drug Company had ordered the medicine found in his possession. In the case of Hilcher v. State, 60 Tex. Cr. R. 180, 131 S. W. 592, Judge Davidson, speaking for the court, held: "It is true the officer said he did not intend to let him get away until he had satisfied himself about the matter, and that after he satisfied himself about the matter he did arrest appellant. Appellant was not conscious of the fact, so far as the record is concerned, that he was to be arrested, and it is not shown, as we understand this testimony, that he was under any duress, or that he believed he was under duress, when he made the statement. We are of the opinion therefore these bills do not justify this court [3] In another bill it is complained that in the argument the county attorney stated that they did not know whether or not this was the first time appellant had been charged with an offense; that the defendant had not put his character in issue, and the state could not attack it. On objection, the court at once sustained the objection, and instructed the jury not to consider the remarks, giving the special charge requested by appellant. This presents no error. Mercer v. State, 17 Tex. App. 467. [4] The court instructed the jury in regard to the explanation of defendant of his possession of the property in the following language: "You are further instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendant was found in possession of certain asperine tablets, if any, described in the information in this cause by Officer Aldrich, but you further find, or have a reasonable doubt thereof, that at the time the defendant was so found in possession of said tablets, if any, that defendant had said tablets in his possession for the purpose of delivering same to the Williams Drug Company or any other person, firm or corporation for J. S. Keene of the First Texas Chemical Company, then, if you so find, you will acquit the defendant and say by your verdict not guilty." It was therefore unnecessary to give the special charges requested on this issue. HYROOP v. STATE. (No. 3642.) (Court of Criminal Appeals of Texas. June 25, 1915. Rehearing Denied Nov. 10, 1915.) 1. INDICTMENT AND INFORMATION JOINDER OF COUNTS-SUFFICIENCY. Where an indictment was in two counts, and one of them was good, there was no available error in overruling a motion to quash, where the conviction under the indictment was general. 8. PHYSICIANS AND SURGEONS 6-UNLAWFUL PRACTICE. that any person is practicing medicine when he Under Rev. St. 1911, art. 5745, providing publicly professes to be a physician or sur137-geon or treats or offers to treat any disease, deformity, or injury by any system or method, or to effect cures thereof, and charges money or other compensation therefor, it is not necessary to complete the offense that the defendant shall have held himself out as practicing medicine. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. 6.] [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. 137.] Appeal from Tarrant County Court; Jesse M. Brown, Judge. C. E. Hyroop was convicted of unlawfully Afpracticing medicine, and he appeals. [Ed. Note. For other cases, see Physicians firmed. and Surgeons, Cent. Dig. § 2; Dec. Dig. 2.] 3. CRIMINAL LAW 780 ACCOMPLICES WHO ARE. The fact that officers went to one charged with practicing medicine unlawfully, and, though perfectly well, procured him to treat them for a supposed trouble in order to catch him, does not make them his accomplices so as to require a charge on accomplices. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. 780.1 4. PHYSICIANS AND SURGEONS 6 - UNLICENSED PRACTICE-MASSEURS - EVIDENCE ADMISSIBILITY. In a prosecution for unlawfully practicing medicine, where the defense is that defendant was a masseur, and not a physician, evidence for the state that he treated disease by other means than those usually ascribed to a masseur is admissible. [Ed. Note.-For other cases, see Physicians, and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. mm 6.] 5. PHYSICIANS AND SURGEONS 6-LICENSE TO PRACTICE "PRACTICING MEDICINE""PHYSICIAN." Under Rev. St. 1911, art. 5745, providing that any person is "practicing" medicine when he publicly professes to be a physician or surgeon or offers to treat any disease, deformity, or injury by any system or method, or to effect cures thereof, and charges money or other compensation therefor, one professing to be a masseur is a "physician," where he professes to cure diseases or disorders. [Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. km 6. For other definitions, see Words and Phrases, First and Second Series, Practice of Medicine.j 6. CRIMINAL LAW 406-BEST EVIDENCEADMISSIBILITY. On defendant's admission that a circular was one used by him in advertising his business as a masseur, the court properly admitted the circular in evidence to show the purpose for which he held himself out. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. 406.] 7. CRIMINAL LAW DENCE. 400-SECONDARY EVI Parol evidence of the contents of a circular was properly rejected, where the circular itself could be put in evidence. Roy & Rowland, Mike E. Smith, and G. W. Dunaway, all of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. [1] Appellant was adjudged guilty of unlawfully practicing medicine. As the second count in the information, at least, is not subject to the objection leveled at it, and the conviction being general, and can be applied to either count, the court did not err in overruling the motion to quash it. This count in the information is drawn in terms frequently approved by this court. Collins v. State, 152 S. W. 1047, and cases there cited. [2] Neither is the medical practice act unconstitutional, as has been heretofore held by this court and the United States Supreme Court. Collins v. Texas, 223 U. S. 288, 32 Sup. Ct. 286, 56 L. Ed. 439. R. E. Tyler testified that he went to the office of appellant, and complained that he had appendicitis, and told appellant that he had had a violent attack some five weeks before his visit. Appellant told him he did not look like a man that had appendicitis, but that he was suffering from inflammation of the colon, and proceeded to treat Tyler for that affliction, saying he could cure him in a little while. Appellant first gave Tyler an enema, saying it was necessary to wash out and rolled two pillows, placing one under his stomach. He then had Tyler to lie down, his hips, and the other under his chest, there being nothing under the center of the body. He then mashed him up and down, pushing him clear to the table. After giving this treatment for awhile, he placed Tyler on another table, and gave him an electric treatment with an electrode, later so using the electrode as to produce what is called the violet ray. Without going into further details of the treatment, he told Tyler when leaving that he must eat nothing but soup and milk, and leave off all heavy diets, especially meat. [Ed. Note. For other cases, see Criminal As a matter of fact, Tyler was not sick Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. with any disease or disorder when he went Dig. to see appellant, but went there at the in 400.] stance of others to see whether or not ap- | Legislature in exempting a masseur in his pellant was practicing medicine, within the sphere of labor. provisions of the medical practice act, and making a charge therefor. Tyler paid appellant $3 for the treatment. G. W. Day testified he went with Tyler, and testifies to, in substance, the same state of facts as did Tyler. [3] Appellant contends this made them accomplices, and the court should have so instructed the jury. These men, knowing or believing that appellant was practicing medicine in violation of law, went there to detect him, and under no rule of law we know of, would their acts constitute them accomplices. [4] Appellant objected to the testimony of [5] Appellant seems to think the treatment must have been by administering medicines before he would be included within the prohibition of the law. Article 5745 of the Rev. Statutes reads: "Any person shall be regarded as practicing medicine within the meaning of this law: cian or surgeon and shall treat, or offer to "1. Who shall publicly profess to be a physitreat, any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof; "2. Or who shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method, or to effect cures thereof and charge therefor, directly or indirectly, money or other compensation." McEachin's Rev. Stat. This article was construed in Ex parte Collins, 57 Tex. Cr. R. 2, 121 S. W. 501, and the construction therein is the correct one and has always been adhered to. If appellant could have proven that the particular sphere of a masseur was "manip ing the body by hands or mechanical means," this would not have embraced the treatment shown to have been given Tyler on his visit to his office, and would be immaterial in this case. Joseph Winterman who testified: That appellant treated him for an affection of the hand and arm. That his hand just hurt, elbow ached, and muscles of the arm hurt. Appellant treated him for some time, and charged him $25. He gave Winterman an electric treatment with a battery, and also gave him what is termed a "hot-air" treatment, put-ulating, stroking, kneading, tapping, or beatting the hand in a "sweat box." That appellant told him he could cure him, but he did not do so, although he underwent treatment for some two or three months. Appellant's contention was that he was a "masseur," and therefore did not have to obtain and register a certificate. As this was his contention, it was permissible for the state to show that he was treating disease by othmeans and methods than that usually ascribed to a masseur, and the court did not err in admitting this testimony, nor in admitting that he had an account at a drug store for medicines, and in one instance had prescribed and furnished a salve for a sore on the leg of a patient. The testimony of Tyler and Day was clearly admissible, and the objections urged to certain portions thereof are untenable. [6-8] As appellant admitted the circular introduced in evidence was one he used for advertising purposes, the court did not err in refusing to sustain his objection to its admissibility. This would likely show in what way he held himself out. Of this we cannot judge; for, although it was introduced in evidence, it is not contained in the record. The circular, when introduced, would speak for itself, and it was not error to refuse to permit witnesses to testify as to its contents. There does not appear to have been used any terms needing explanation; at least the bill does not so state nor contend. The fact he did not hold himself out as a "physician and surgeon" would not prevent his conviction if he practiced medicine within the meaning of that term as defined in the Revised Statutes. We have carefully read each of the bills of exceptions, and are of the opinion that none of them present error, and the judgment The testimony of the witnesses Brown, Castello, and Day, excluded by the court, presents no error. Appellant does not state that he expected to or could have proven by the witnesses that the treatment given by him to Tyler, and which he admitted giving, was the treatment of a "masseur" in his particular sphere of labor. It is true be offered 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 it could, that he treated his patients by other means than those customarily used by a masseur in his particular sphere of labor. The giving of enema treatment by electric machinery, and by the use of a hot-air apparatus, does not come within the means and modes usually ascribed to the sphere of a masseur in the treatment of a disease, and as used by them aforetimes, and could not come within the exemption as defined by the FLETCHER v. STATE. (No. 3716.) (Court of Criminal Appeals of Texas. Oct. 20, 1915. Rehearing Denied Nov. 10, 1915.) 1. PROSTITUTION 4-PROCURING-EVIDENCE -SUFFICIENCY. In a prosecution against defendant for unlawfully giving the name of his wife to another for the purpose of enabling the latter to have cient to sustain a conviction. sexual intercourse with her, evidence held suffi [Ed. Note.-For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. 4.] |