The information in this case is in two counts, charging appellant with two separate misdemeanors, each being the practice of dentistry without a license.
The first offense was alleged to have occurred on July 10, 1953, and was that appellant “did undertake to make and did make an impression of the upper gums * * * of W. J. Nelson, for.the purpose of constructing a full upper removable dental place of false teeth for the said W. J. Nelson * *
The second count charged the same offense in the same language, except that the name of A. L. Moorhead was substituted for that of W. J. Nelson and the offense was alleged to have occurred on August 7, 1953, .
Each count contained the allegation that appellant was not a licensed practitioner of dentistry.
Appellant was convicted upon each count, and a fine of $100 was fixed as punishment in each count.
By Sec. (3) of Art. 754a, Vernon’s P.C., one is engaged in the practice of dentistry who makes or undertakes to make an impression of the gums of a human mouth for the purpose of constructing a dental plate.
It is a violation of the law to practice dentistry without a license. Arts. 747 and 754, Vernon’s P.C.
It will be noted that the unlawful act here charged is composed of two elements: (a) The impression of the gums. must be made and (b) such impression must be made with the specific purpose of making a dental plate. The taking of the impression of the'gums is not, of itself, unlawful. It is the purpose with which the impression of the gums is made that constitutes the unlawful act denounced by the statute and here charged in the information.
In order to convict appellant, the state was under the burden of establishing two things, which are: the two elements above pointed out. If either of thése elements is lacking, the state’s case fails.
This fact must be’ kept in mind 'in determining the sufficiency of the evidence to support the conviction.
Nelson resided in Austin, Texas, and was an employee of the State Board of Dental Examiners. It was in the scope of his employment to apprehend violations of the Dental Practice Act. On such an assignment, he went to Fort Worth to appellant’s office and represented to him that he was an automobile-, salesman residing in Fort Worth and that he wanted to get an upper plate of false teeth. He represented that the upper plate he then had was loose and that he had difficulty in eating therewith. Appellant examined the plate and recommended that it be re-lined. The witness thereafter fitted a re-liner in the plate.
If we understand the witness’s testimony, it is that, from this plate,' appellant Constructed and made for hi* a complete upper plate, which was delivered to witness by a lady in appellant’s office.
In view of the admission of the witness upon cross-examination, a more detailed statement of his direct testimony is not called for.
Upon cross-examination, the witness testified as follows:
“A. No, he didn’t make an impresr sion of my upper gums. :
*152“Q. What did he do ? 'A. He" made an impression from this -plate right here (indicating).
“Q. He made an impression from that plate? A. Yes, sir.
“Q. In order to make you a plate, which is State’s Ex. 1, is that correct? A. Yes, sir.”
If appellant did not make an impression of Nelson’s upper gums, he was not guilty, as charged. Nelson says that he did riot. By his- own: testimony, then, the evidence fails to support the conviction under the first count of the information.
We now pass to a determination of the sufficiency of the evidence to support the second count of the information charging, in identical language, the offense charged in the first count except that the name of A. L. Moorhead was substituted for that of W- J. Nelson and the date was alleged as August 7, 1953.
Moorhead resided at Stephenville, Texas, and was a part-time investigator fpr the State Board of Dental Examiners. In such capacity, he went to appellant’s office in Fort Worth with the view of apprehending him in violating the Dental Practice Act. The witness testified: “I told him (appellant) that' I wanted him to make me an upper plate, that the one I had was loose.”
It is sufficient to say that appellant made the witness an upper plate from an impression made of his old plate after re-lining it.
Here,- the witness, upon cross-examination, gave practically the same testimony as did the witness Nelson, for we find there that he testified as follows.:.
“Q. But he didn’t make any impression of your upper gums, did he? A. No.
“Q. He made an impression of your upper plate, didn’t he? A. He taken my upper plate.”
Unless appellant made an impression of Moorhead’s upper gums, he was not ginlty as charged in the second count of the information. Moorhead says that'he 'did not do so. The facts are insufficient to support the conviction under the-second count of the information. ■ •
Because the evidence does not warrant the conviction, the judgment is reversed and the-cause is remanded. : -