The opinion
ON
REHEARING.
February 2, 1921.
LATTIMORE, Judge.
In his motion for rehearing appellant insists that the indictment is defective because same does not state that he failed to register his age, postoffice address, place of birth and school of practice, with the District Clerk. One wishing to practice medicine in this State must file with his district clerk a certificate. In addition, he must also file a document stating his age, postoffice address,
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place of birth and school of practice. This latter document he must sign and swear to himself. He may be prosecuted as an illegal practitioner of medicine for failure to file either instrument, according to the facts, but it would not be necessary upon prosecution for failure to file only one of same for the indictment to allege the failure to file the other. The Calcoat case cited, 37 Texas Crim. Rep., 245 , 39 S. W. Rep., page 364, does not support appellant’s contention or present an analogous principle. Calcoat was indicted for violating the primary election law. It was alleged in the indictment that at the time of said primary election he was not a legal voter in Taylor County. The indictment was held bad by us because it did not contain the allegation that appellant would not have been a qualified voter in the next succeeding general election. The language used in that opinion was that this being the essential
element
of the offense it must be averred in the indictment. The principle of that case has no application here. The element omitted in the instant case was not an essential ingredient and was not necessary.
We are unable to find anything discriminatory in Article 5741 of our Civil Statutes; tho we might observe that this prosecution is under the provisions of Chapter 6 of our Penal Code. We have no means of judicially knowing that the subjects named by our statutes upon which examination must be had by one desirous of practicing medicine, are those pertaining only to alopathic practice. Matters going to sustain such proposition would be matters of fact and not of law and not facts of such a general knowledge as to enable this court to take judicial recognizance thereof.
The motion raises but these two questions. It will be overruled.
Overruled.