I would not dissent from the opinion of the majority of the court in this case were it not that I believe the decision under the facts of the case has a tendency to nullify our statutes regulating the practice of medicine in this State. See Rev. Stats., arts. 3777 to 3789, inclusive. Certainly it can not be contended that the paper presented in the record is a certificate that in anywise complies with the law. The original has been sent up to us, and it does not show even a diploma, but merely a certificate of one Wirt Johnson, purporting to be secretary of the Mississippi State Board of Health, authorizing said Price to practice medicine in the State of Mississippi, under authority of an act of said State. Said certificate bears date April 25, 1882, and is not authenticated in such manner as can be taken cognizance of in the courts of this State. On the back of said certificate are the following indorsements: "Wm. M. Powell, M. D., Sec'y. of Ex. Board. J.B. Salmon, M. D., Mem. Ex. Board." Below is the following: "Members of Board of Medical Examiners for 42nd Judicial District of Texas. This August 1st, 1894. Done by order of board. Filed April 12, 1898. A.T. Gay, Cl'k. No seal." On the margin is the following indorsement: "Filed for record June 20th, 1893, at 10:00 o'clock a. m. Recorded June 20, 1893, at 2 o'clock p. m. A.T. Gay, C. D.C. Y. C. T." This is all the formal authority that appellant ever pretended to have. Salmon, by his testimony, shows that he was a *Page 433 member of the medical examining board of the Forty-second Judicial District of Texas, and that William Powell was another member. He further shows that in 1894 he examined Dr. Price as to his qualifications to practice; that, when an applicant came before the board without any certificate, the board would examine him and grant a certificate; but, when he already had one, the board indorsed it as this was done. "After being indorsed by Dr. Powell and myself, it was returned to Dr. Price. Dr. Powell was not present when Dr. Price was examined by me. I was the only member of the board present. He paid the examination fees." Dr. Price testified: "That he went before Dr. Salmon and got a temporary certificate to practice medicine after examination, and filed it for record in the office of the district clerk of Young County. That he afterwards applied to the board of medical examiners for the Forty-second Judicial District for a permanent certificate, and he gave them this certificate from Mississippi, and they returned him the same with the indorsements on the back thereof as hereinbefore set out, and he then filed the same in the office of the district clerk of Young County for record, and paid the fee for recording the same. It was then returned to me by the clerk. And that he never knew that it had not been properly recorded until after he was indicted." Gay testified, substantially, that he was district clerk of Young County in 1894; that he recorded appellant's temporary certificate. Afterwards he brought this one back to be recorded again, and he started to record it, but misplaced it in some way, and did not get all of the indorsements on the back of it recorded. Evidently, as to this matter, he refers to the instrument with the indorsements on the back thereof, as before stated.
Now, the question occurs, taking it for granted that no one can claim ignorance of the law, can it be regarded as in any sense true that the record here shows that appellant made an honest endeavor or attempt to qualify himself to practice medicine in Young County? The statute requires that, although he have a diploma, before he can procure a license to practice medicine in this State, he must be examined thoroughly by two members of the board. This record shows that he was only examined by one member of that board, — Salmon; and I insist that examination was not for his permanent license, but for his temporary license. It is true the record in this case is exceedingly meager; but, when appellant complains of an error because the court did not give a certain charge, he must show affirmatively that he was entitled to the charge. Salmon, as before quoted, says "that he gave him a temporary certificate after examination," and he only speaks of the one examination. He says afterwards "that the signatures on the back of the instruments were his and Powell's signatures, and were placed there after Dr. Price was examined as to his qualifications to practice; that Powell was not present when Price was examined by me." Evidently there was but the one examination; nor does Price himself by his testimony refer to but the one examination. He states that he went before Dr. Salmon, and got a temporary *Page 434 certificate after examination; that he afterwards applied to the board of medical examiners for a permanent certificate, and gave them the certificate from the Mississippi board of health, and they gave it back to him with the indorsements; and that he then filed it in the office of the district clerk, etc. Now, if there was but the one examination, and that was for only a temporary license, appellant knew that he had never been examined for a permanent license at all. If this record can be strained to indicate that he was ever examined for a permanent license, he was not examined by a quorum of the board, but only by one member, which the law does not authorize. More than this, the board and the members thereof were required to have a seal, and there is no pretense that this pretended certificate ever had a seal on it. It occurs to me that appellant must be held to a knowledge of the statutes of this State, which authorize a member of the medical profession to qualify himself to practice medicine; otherwise, the law is nullified, and we place a premium on ignorance of the law. The makeshift here introduced, in fact, is not even a lame pretense of a compliance with the law, and shows very clearly to my mind an attempted evasion of a provision of the statute made, not only as a protection to the community to insure competent physicians, but intended as a safeguard to the profession of medicine itself; and its provisions should be substantially complied with. At least when one is indicted for a failure to comply therewith, he should show an honest endeavor to comply with its provisions. The Pettit Case, referred to in the majority opinion, is entirely different from this case. There the proper steps had been taken to procure a certificate, and a certificate had been granted by the proper authority. The failure to record the same arose from no fault of Pettit. On the contrary, he had every reason to believe when he engaged in the practice that his license had been recorded. In this case we have a man claiming to be a physician from Mississippi without a diploma from any authorized college, but coming to Texas with only a certificate from a purported secretary of the board of health of Mississippi, and proposing to engage in the practice of medicine in this State. It seems he knew how to procure a temporary certificate, but made a signal failure to procure a permanent license; and I fail to see that the record disclosed any honest effort on his part to procure such license. If the law is to be upheld, and the profession and community protected against incompetents, we certainly must uphold the spirit, if not the letter thereof. The question arose here on the refusal of the trial court to instruct the jury, in effect, that appellant was guilty of no offense if he made an attempt in good faith to procure the license, — that is, went before the authorized medical examining board, was examined, and secured what he thought to be a certificate from said board, authorizing him to practice medicine in this State; and, if he filed the same in the office of the district clerk of Young County for record, and afterwards practiced medicine for pay in said county, in the honest belief that he had a legal certificate, and that the same had been duly recorded by said *Page 435 clerk, to acquit him. I do not believe the court erred in refusing to give the requested charge on the lame pretense of compliance with the law here disclosed in the record, and I can not agree to a nullification of the law.