ON state’s motion for rehearing
MORRISON, Presiding Judge.At the insistence of the state, we have again reviewed the record.
The complaint and information alleged that appellant “did undertake to make and did make an impression” of the upper gums of Nelson and Moorhead.
On original submission we reversed the conviction and, in holding that the evidence was insufficient, quoted certain testimony of the prosecuting witness to the effect that appellant did not make an impression of their upper gums but made an impression from their old plates for the purpose of making new ones.
The witness Moorhead, having testified that appellant “didn’t make any impression” of his upper gums, further testified:
“Q. He made an impression of your upper plate, didn’t he? A. He taken my upper plate.
“Q. And made an impression off of that? A. Supposedly. I don’t know what he did, but anyway the only, the impression you could say he made was when he brought the wax in there and handed it to me and asked me to put it in my mouth and bite down on it and so forth.”
As we now view it, there is little variance between the testimony of the state’s witnesses and that of the appellant.
*477The appellant testified that he was a naturopathic physician and owner of the College Avenue Clinic in the city of Fort Worth, that he advertised “Dental Plate Laboratory. New false plates guaranteed to fit or money refunded,” that he made impressions from old plates or impression trays, and that he made a set of upper false teeth for the two persons who are named in the information.
Appellant admitted that he placed the material in the old plate “to get the impression” but testified, “I prepared the tray and he put it in his own mouth”; that the material was soft when put on, and the heat of the mouth caused it to flow and adhere to the plate, and it firms up within three days and makes “a good working impression.”
Appellant further testified that the soft material was put there “to conform to the upper gums” and that “the impression of the gum is taken on this.”
Appellant’s position was that he was not violating the Dental Practice Act because, as he puts it, “I prepared the tray and he (the patient) put it in his own mouth.” He gave this explanation in describing his method of practice.
We quote, in part, from Article 754a, Section 3: “Any person who shall offer or undertake in any manner to prescribe or make, or ernse to be made, an impression of any portion of the human mouth. . . .”
We conclude that appellant’s position is unsound, and his testimony shows that his conduct was in violation of the act.
Appellant’s able and conscientious attorney has raised a number of novel and interesting questions. We shall discuss those urged in his brief.
Bill of Exception No. 3 complains of the failure of the court to set forth in his charge the exceptions to the Dental Practice Act as set out in Article 753, V.A.P.C.
As stated, this prosecution is based upon Article 754a.
It has long been the rule in this state that if “exceptions be placed in a separate section or article from the one containing the definition of the offense, or if they be not such as to be essential to the definition of the offense, it will not be necessary to *478negative such exception in the indictment charging such offense.” Baker v. State, 132 Texas Cr. Rep. 527, 106 S.W. 2d 308; Blumberg v. State, 144 Texas Cr. Rep. 200, 161 S.W. 2d 1082; and Griffin v. State, 159 Texas Cr. Rep. 142, 261 S.W. 2d 838.
Bill of Exception No. 4 complains of the failure of the court to instruct the jury to acquit if the defendant believed or had reason to believe that working on inert matter only was not a violation of the Dental Practice Act. This, of course, would be tantamount to telling the jury that if the appellant were mistaken as to the law, he would not be guilty. Article 40, V.A.P.C., provides, “No mistake of law excuses one committing an offense,” and disposes of this contention.
Bill of Exception No. 5 complains of the failure of the court to charge the jury that the Dental Practice Act did not apply to physicians and surgeons legally authorized to practice medicine as defined by the laws of this state.
As stated earlier, Article 753 sets forth the exceptions to the Dental Practice Act, among them being “physicians and surgeons legally authorized to practice medicine as defined by the law of this State.”
Appellant contends that he comes within this exception because he is a licensed naturopathic physician.
We call attention to paragraph two of Section 18 of Article 4590d (Practice of Naturopathy), which reads, in part, as follows :
“Nothing in this Act shall be construed to be authority for any naturopath, licensed hereunder, to practice medicine as defined by the laws regulating- the practice of medicine in this State, Surgery, Dentistry. . . .”
The state’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment is now affirmed.