171 S.W. 729 | Tex. Crim. App. | 1914
Appellant was convicted of unlawfully practicing medicine, under the second count in the information, which charges that he unlawfully practiced medicine on a human being without having first registered his license as required by law showing his authority to practice medicine as set forth in the statute. It further charges that on or about the 7th day of May, 1913, appellant was convicted in El Paso County in the same court of the same offense herein charged against him, upon pleadings then legally pending in said court, of which the said court had jurisdiction, and that prior to the commission of the aforesaid offenses by the said Ira Collins, towit: On the 8th day of January, 1914, in the County of El Paso, he was duly and legally convicted in said last named court of the same offense hereinbefore charged against him, upon an information then legally pending in said court and of which the said court had jurisdiction. Many exceptions also were taken to the charge of the court, all of which seem to have been decided against him by the previous decisions of this court, and it is deemed unnecessary to discuss them. See Singh v. State,
It is contended that the information is insufficient, alleging previous convictions so as to obtain the enhanced punishment authorized by the Penal Code where the party has been previously convicted of similar offenses. This information charges that appellant has been before convicted of the same offense, setting out two instances where he has been previously convicted of the same offense. This does not properly charge this character of case as was decided by this court in Kinney v. State,
Many exceptions were reserved to the charge at the proper time. We call attention to one of these in which the jury was authorized to convict the defendant if, among other things, he charged any money of any sort for medical treatment, because the information had alleged that defendant charged current money ofthe United States of America for his services. Upon another trial the court should confine the findings of the jury to the allegations in the information. The information alleges appellant charged $2 current money of the United States of America for his services. The evidence does not show what kind of money was paid. The witness said "two dollars." If it was not current money of the United States, of course that allegation would not be met, and the court should have confined the jury to finding the money to be current money of the United States.
Another bill of exceptions recites that the court permitted the introduction of the evidence of Mr. Veazey, the auditor of the El Paso Herald, that the defendant had a credit on the books of the Herald Publishing Company for two hundred and forty-seven dollars. As this is presented we think the objections were well taken. This matter should be connected up in some way to make it admissible. The fact that defendant had $247 to his credit in the Herald Publishing Company did not prove or tend to prove, so far as the matter is shown, any issue in this case. Possibly or probably it might be connected up so as to make it admissible. If the State was trying to show that he was publishing to the world through a newspaper that he was practicing medicine and this money was placed there to pay for such advertisements in that paper, it might be admissible, but it must be connected in some way so as to make it admissible.
Another bill in the same connection shows the court admitted, over appellant's objections, an advertisement that on its face showed it was that of another person and not the defendant, and copies of the "El Paso Daily Herald," containing advertisements of "the A.T. Still Osteopathic Infirmary, Ira W. Collins Physician and Surgeon in Chief," and advertising said infirmary as a hospital, for the cure of diseased persons, to which action appellant urged objections. If Ira W. Collins authorized the publication it would be admissible against him, but until that was shown in some way the mere fact that the A.T. Still Osteopathic Infirmary published his name with it would not make Collins responsible. If he was connected with that infirmary, and it was so shown, this evidence might be admissible to show that he was engaged in that particular character of practice of medicine, but unless it is connected in some way, the testimony would not be admissible.
There is another question which is noticed. There was a motion made to dismiss the appeal. It is thus presented: When the verdict of the jury was returned and before notice of appeal was given, appellant entered into recognizance in open court. Subsequently he moved for a new trial. The court declined to hear that motion because appellant had entered into recognizance, thereby ousting the County Court of jurisdiction. This is not correct. The recognizance does not oust the *537
trial court of jurisdiction; it takes notice of appeal to do that. Without such notice the jurisdiction of this court does not attach. Under the statute and the authorities notice of appeal is requisite to attach the jurisdiction of this court; a recognizance would amount to nothing in ousting the lower court of jurisdiction and attaching jurisdiction to this court without notice of appeal. In the case of Bundick v. State,
The judgment is reversed and the cause remanded.
Reversed and remanded.