Appellant insists that the rule applicable to refused special charges appearing in Art. 2188, Revised Civil Statutes, — which requires that when such charges are marked refused there shall be a presumption that the party asking such charges presented same at the proper time, etc., — should be given effect in this case, and that we erred in refusing to consider his three special charges each of which was marked refused but none of which showed by any content or notation thereon, or separate bill of exceptions relative thereto, when such charge was presented to the trial court; i. e., that such charge was presented at the time required by Art. 659, C. C. P., which is before the court reads his main charge to the jury. A somewhat similar question was considered in Linder's case,94 Tex. Crim. 316, 250 S.W. Rep. 703. In the Regular Session of the Legislature in 1913 acts were passed regulating the manner and time of charges in both civil and criminal cases. That relating to such procedure in civil cases will be found in Chap. 59 of the Acts of the Legislature, Regular Session 1913. The act relating to criminal charges is in Chap. 138, id. The enactment of 1917, which contains what is now Art. 2188, *Page 521 supra, referred to by appellant, was an amendment of Chap. 59, supra, and has no reference to the procedure in criminal cases. The rule requiring that in criminal cases the record show in some way that special charges were presented to the court before the main charge was read to the jury, has been many times upheld by this court. Johnson v. State, 81 Tex. Crim. 71; Harper v. State, 86 Tex.Crim. Rep.; Grissom v. State, 87 Tex.Crim. Rep.; Harris v. State, 93 Tex. Crim. 349; Vitrano v. State, 95 Tex.Crim. Rep.; Gray v. State, 100 Tex.Crim. Rep..
Appellant seems under the impression that a different rule should apply in misdemeanor cases, but such does not seem to be the case. Brogdon v. State, 63 Tex.Crim. Rep.; Bradley v. State, 136 S.W. Rep. 446; Durham v. State, 57 Tex. Crim. 279. The case of Giles v. State, 148 S.W. Rep. 320, cited by appellant, seems to us to hold pointedly against his contention, for it is therein stated in so many words that in misdemeanor cases the only way to have the appellate court consider complaints of the charge, or the refusal of specialcharges requested, is by taking bills of exception at the time, which must set out the specific grounds of the complaint.
Appellant did except in writing to the court's charge on the ground that it erroneously told the jury that although they found that appellant was a masseur acting in his sphere of labor, still if they found that he charged for his treatments, he should be found guilty herein; it being urged that such charge was on the weight of the evidence. We do not think so. Art. 741, P. C., in so many words, makes him a practitioner of medicine, i. e., one who must register in the district clerk's office his authority to so practice, — who treats or offers to treat any disease of human beings, etc., and charges therefor. If we follow the established holdings of this court we see no escape from the conclusion under the facts of this case, that the trial court correctly charged the law applicable to such facts. Newman v. State, 58 Tex.Crim. Rep.; Milling v. State, 67 Tex.Crim. Rep.; Newman v. State, 163 S.W. Rep. 427.
Being unable to agree with appellant's contention, the motion for rehearing is overruled.
Overruled.
HAWKINS, J., absent. *Page 522