Appellant was indicted, tried and convicted in the County Court of Bell County, Texas, on the 4th day of October, 1909, upon a charge of unlawfully practicing medicine.
This prosecution was brought under the Act of the Thirtieth Legislature, page 224, in which the practice of medicine is defined as follows:
"Sec. 13. Any person shall be regarded as practicing medicine within the meaning of this Act (1) who shall publicly profess to be a physician and surgeon, and 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.
"(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."
Section 4 provides that 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 his authority for so doing in the county of his residence.
It was proven on the trial of this case that appellant had not registered in the office of the clerk of the District Court of Bell County his authority for practicing medicine; in fact, appellant, while on the witness stand testifying in his own behalf, admits that he had not filed for registration a license to practice medicine in Bell County or any other county. The State's witness testified that he carried his wife to see appellant at Dankworth Institute in Belton; that his wife was suffering with some female disease, and stated to appellant the nature of the disease, and he said he could cure her. "He charged me $20 and I paid it to him. Appellant said my wife needed a wash for use at home, and asked what drug store I patronized. I told him, and he said he would call by and have the wash put up for me. I afterwards called at the drug store and they gave me a powder with directions on it. He treated my wife at his home." Appellant, testifying in his own behalf, admitted in substance the facts as testified to by the State witness, but said he made no charge for recommending the wash received at the drug store. *Page 159 He stated: "My occupation is that of masseur and I practice massage. Massage is a scientific method of treating diseases by systematic manipulation of the diseased parts with the fingers, hands and with brushes, vibrations, etc."
The indictment in this case is in proper form. It negatives every exception named in section 11 of the Act, and even if it did not do so, under the authority of Newman v. State, 124 S.W. Rep., 956, and authorities there cited, the indictment in this case would be valid.
As to whether or not one who holds himself out as capable of curing diseases by the massage treatment or other treatment, is guilty of violating this Act, is so fully and ably treated in the case of Newman v. State, hereinbefore referred to, we do not deem it necessary to discuss it here, and under the holdings of this court, that those who for pay practice massage for the cure of disease are liable, it becomes immaterial whether or not a charge was made for the prescription at the drug store.
The other assignments of error all relate to the failure to give several special charges requested by appellant. The court in his main charge instructed the jury: "You are charged that the provisions of the foregoing law do not apply to masseurs in their particular sphere of labor who publicly represent themselves as such; but in this connection you are further charged that a masseur is not permitted under the law to treat, or offer to treat diseases or disorders, mental or physical, or to effect cures thereof, and charge therefor, directly or indirectly, money or other compensation." This charge is in accordance with the decisions of this court, and there was no error in refusing to give the special instructions requested.
The judgment is affirmed.
ON REHEARING. May 3, 1911.