Norwood v. State (158 S.W. 270, 1913)

■PRENDERGAST, J.

The appellant was convicted for unlawfully practicing medicine. The complaint and information, among other things, alleges that the appellant did practice medicine upon a human being in Bexar county without authority of law, in "that he did then and there unlawfully treat a disease or disorder, to wit, did treat one Yinnie Spang-ler, a human being, for consumption, diagnosing her case and prescribing some gas treatment therefor, with the other proper allegations.

The proof showed that, when said Yinnie Spangler applied to appellant for treatment, she told him, upon his inquiry, “that I had asthma and choking-up sensation at night.” On cross-examination she testified: “The defendant never diagnosed my ease as consumption. * * * X told the defendant I had asthma, or a choking-up sensation at night, and he said he could cure it.” Appellant himself testified on this ubjeet: “I never diagnosed her case as consumption.” And again: “I did not diagnose Maud Richardson’s case.” This latter name was the name Miss Spangler assumed when she introduced herself to appellant. This is all the testimony on the subject. The court, at the instance of the county attorney, in submitting it to the jury for a finding, charged them: “If you find that the defendant on or about October 2, 1912, treated Yinnie Spangler for a disease or disorder with the other requisites,” to find him guilty.

The point was made in the lower court and in this that there was a fatal variance between the allegations and the proof in that the allegations charged on this point, as above stated, and that the proof did not establish or tend to establish that Yinnie Spangler had consumption or was treated for consumption. In our opinion appellant’s contention is correct, and must result in the reversal of the case.

The appellant’s main contention in the court below was in effect that while numerous patients were treated in the hospital of which he had charge that it belonged to a corporation, and he was the mere manager, employé, and agent of the corporation in whatever was done in the way of treating patients, receiving pay therefor, etc. The court at his instance gave this special charge to the jury: “You are instructed that if you believe from the evidence that the treatment given to Yinnie Spangler was given by the Norwood Institute, a corporation, and not by the defendant, then, in that event, your verdict should be for the defendant, and you should say by your verdict not guilty.” This-special charge is not the law, and should not have been given. Even if he was an officer, agent, servant, or employé of said corporation and committed the offense charged, even though purporting to act or acting for the corporation, he would be guilty. Oliver v. State, 144 S. W. 615, 616; Gould v. State, 146 S. W. 178. Mr. Bishop in his 1 Criminal Law, in section 892, says: “An agent or servant who, knowing the facts, does a criminal thing for his principal or master, is answerable to the criminal law precisely as though he had proceeded self-moved, and for his own personal benefit. And it is the same when with the like knowledge he merely assists therein.” Again, in section 685, he says: “The authorities agree that there are in misdemeanor no accessories either in name or in the order of the prosecution.” To the same effect is Bush v. State, 6 Tex. App. 421; Taylor v. State, 5 Tex. App. 529. Mr. Branch in his Texas Criminal Law, § 681, lays down this rule, and cites these cases in support of it: “There is no distinction between .principals and accomplices in misdemeanors; a party who would be an accomplice if the offense was a felony is a principal if the offense is a misdemeanor. If defendant comes either within the definition of an accomplice or a principal, he is a principal in a misdemeanor. Houston v. State, 13 Tex. App. 595; Caudle v. State, 74 S. W. 545; Monda v. State, 70 S. W. 548; Kaufman v. State, 38 S. W. 771; Buchanan v. State, 33 S. W. 339; Beuchert v. State, 37 Tex. Cr. R. 505, 40 S. W. 278; Bogle v. State, 42 Tex. Cr. R. 392, 55 S. W. 830; Schwuist v. State, 52 Tex. Cr. R, 427, 108 S. W. 698; Gerstenkorn v. State, 44 S. W. 502; McGovern v. State, 49 Tex. Cr. R. 36, 90 S. W. 502; Winnard v. State, 30 S. W. 555; Rape v. State, 34 Tex. Cr. R. 615, 31 S. W. 652; Segars v. State, 40 Tex. Cr. R. 577, 51 S. W. 211; Reed v. State, 53 Tex. Cr. R. 4, 108 S. W. 368, 126 Am. St. Rep. 765; Hawkins v. State, 51 Tex. Cr. R. 37, 100 S. W. 956; Lott v. State, 58 Tex. Cr. R. 604, 127 S. W. 192.” See especially Oliver v. State, supra. It is unnecessary for us to cite the numerous cases decided by this court construing and applying the statute prescribing this offense. But see Collins v. State, 152 S. W. 1048, where some of the cases are collated.

We have considered all other of appellant’s claimed errors, as assigned, and are of the opinion that none of them as assigned presents any error.

Reversed and remanded.