Opinion
No. 21236.
Delivered December 18, 1940.
Medical Practice Act (Violation of) — Evidence.
In prosecution for violating the Medical Practice Act where complaint and information charged that accused resided in Mason County, and that he maintained an office in said county, where he treated and prescribed for patients without having first registered in the office of the district clerk of Mason County a certificate issued by the State Board of Medical Examiners, evidencing his right to practice medicine, evidence which not only failed to show that accused resided in Mason County, but, on the contrary, showed that he resided in Dallas County, and there was no evidence which showed that he had an office in or had designated a place in Mason County where he met, treated, or prescribed for patients, was insufficient to sustain conviction, notwithstanding some evidence showing that accused came to Mason County at the request of a patient and met him at the place designated by patient and treated him.
Appeal from District Court of Mason County. Hon. Raymond Gray, Judge.
Appeal from conviction for violating the Medical Practice Act; penalty, confinement in the county jail for fifteen days and fine of $500.
Reversed and cause remanded.
The opinion states the case.
Clarke Wills, of Fort Worth, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Appellant was charged by complaint and information with having violated the Medical Practice Act. He was convicted of said offense and his punishment was assessed at confinement in the county jail for a period of fifteen days and by a fine of $500.00.
The only question presented by the record which we deem necessary to discuss is the sufficiency of the evidence to sustain the allegations in the complaint and information. It was charged in the complaint, and the averments in the information are identical with those in the complaint, that appellant resided in Mason County; that he had and maintained an office in and had designated a place in said county where he treated and prescribed for patients without having first registered in the office of the District Clerk of Mason County a certificate issued by the State Board of Medical Examiners evidencing his right to practice medicine, etc. Consequently the State was required by evidence to support and sustain these allegations. The record not only fails to show that appellant resided in Mason County, but, on the contrary, it shows that he resided in Dallas County; nor is there any evidence which showed that he had an office in or had designated a place in Mason County where he met, treated or prescribed for patients. It is true that there is some evidence showing that appellant came to Mason County at the request of Mr. Kothmann, the patient, and met him at the place designated by Kothmann and treated him, but there is no evidence from any source that appellant ever designated a place to meet patients for the purpose of treating, prescribing for or advising with them. Hence the proof fails to meet the allegations in the complaint and information. Therefore, we are constrained to reverse the judgment of the trial court and to remand the cause, and it is so ordered.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.