The opinion
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ON MOTION FOR REHEARING.
MORROW, Presiding Judge. —
Appellant interposed a plea in bar upon the ground of former acquittal. In the plea it is averred that on the 6th day of February, 1926, he was charged with “unlawfully practicing medicine upon Mrs. Vera Spann and divers other persons.” Upon the trial he was acquitted. The present trial was upon an information charging that the appellant, on the 1st day of September, 1926, did unlawfully practice upon J. R. Cassidy. There is no specific averment as to the identity of the transactions. If the words “divers other persons” were effective to charge an offense in treating any person other than Mrs. Spann, which.is very doubtful, the plea, in failing to aver that Cassidy was one of the “other persons,” falls short of the legal requirement that such plea must show the identity of the transaction. The only averment on that subject in the plea is that “the facts in the Spann case and the Cassidy case are the same.” To avail himself of the plea of former acquittal, the transactions must be the same, and the two indictments sustainable by the same proof. See Wright v. State, 17 Tex. Crim. App. 152; Vernon’s Texas C. C. P., 1925, Vol. 1, p. 399; Andrus v. State, 286 S. W. 1088 . See also Art. 508, C. C. P., 1925; Spannell v. State, 83 Tex. Crim. Rep. 418; Fehr v. State, 36 Tex. Crim. Rep. 425; Bishop’s New Crim. Law, Vol. 2, p. 634. Moreover, the statute seems to negative the sufficiency of the plea in that each day would be a separate offense, and apparently each person treated would likewise be a separate offense. The nature of the criminal act is one applicable to an individual and not to a collection of individuals. See Byrd v. State, 72 Tex. Crim. Rep. 265.
In refusing to submit the plea of former acquittal to the jury, in our opinion, no error was committed.
The motion for rehearing is overruled.
Overruled.