The opinion
ON MOTION FOR REHEARING.
HAWKINS, Judge.
In his motion for rehearing appellant insists that our original opinion is in conflict with Scales v. State, 46 Texas Crim. Rep., 296 , 81 S. W., 947 , and Lemly v. State, 107 Texas Crim. Rep., 67 , 294 S. W., 856 . Whether or not an indictment such as is found in this case is duplicitous largely depends upon whether the offense charged is a continuous one. Because the statute declares that each day may be a separate offense is not necessarily the controlling factor. If the state desired to secure convictions for more than one offense (it being a misdemeanor) as occuring on different days during a specified period of time then this court seems to be committed to the proposition that it would be necessary to allege in separate counts in the indictment the commission of the offense on the several days for which convictions are sought. If, however, the offense is a continuous one the state may secure a single conviction for the commission of this continuous offense by alleging in a single count that it was committed between days stated and on each intervening day. The fact that the statute provides that each day may be a separate offense would not render such an indictment vicious for duplicity. The Scales case appears to be in conflict with the original opinion in this case and with the case of Novy v. State, 62 Texas Crim. Rep., 492 , 138 S. W., 139 . We note that in the Scales case the court apparently failed to consider the fact that the offense there charged was a continuous offense. This may be accounted for by the statement in the beginning of the opinion that “appellant was convicted of selling cotton futures * * This in fact was what the evidence developed against accused. However, the indictment charged that between certain dates he conducted and carried on a business commonly known as dealing in futures in cotton. If the court’s attention had been directed to the fact that the charge in the indictment was that of a continuous offense the *502 discussion of whether the indictment was duplicitous would doubtless have taken a wider range than is apparent in the decision. We think the Novy case, which does take into consideration that the offense there charged was continuous in its nature, is more in accord with the great weight of authority,. as is pointed out in our original opinion. In order that there may be no further confusion in regard to the matter the Scales case upon the point under consideration is overruled. As further supporting the conclusions heretofore reached in our original opinion, we refer to notes under the case of State of Minn. v. Dufour, 123 Minn., 451 , 143 N. W., 1126 , 49 L. R. A. (N. S.), 792. Notes under the opinion are found in L. R. A. collating authorities from various states which support our conclusions, that such an indictment as is found in the present case is not bad for duplicity, among them being State v. Cofern, 48 Me., 364, Comm. v. Dunn, 111 Mass., 426 . We do not regard Lemly v. State, 107 Texas Crim. Rep., 67 , 294 S. W., 856 , as out of line with the holding in the present case. The prosecution there was under what is generally known as the “medical practice act.” Article 741, P. C., undertakes to define when a person is practicing medicine. The first sub-division says: “Who shall publicly profess to be a physician or surgeon and shall treat or offer to treat any disease, etc.”, shall be regarded as practicing medicine. And the second subdivision says that one “who shall treat or offer to treat any disease or disorder, etc. for money or other compensation,” shall be regarded as practicing medicine. The charge in Lemly’s case was not that accused publicly professed to be physician or surgeon, but the prosecution was under the second subdivision of article 741. The information in that case specifically charged that accused did on divers days unlawfully treat and offer to treat one Roy Johnson for a disease, etc., and charged therefor money, without having obtained and received a license and certificate, etc. It is apparent that the offense charged against Lemly was not a continuous offense. Treating or offering to treat a particular individual on different days seems to be necessarily separate transactions originating from an independent impulse and therefore could not be a continuous offense. The averment in the indictment in Lemly’s case charging in one count the treatment of Johnson on various days did not charge a continuous offense. It charged in one count more than one misdemeanor, and therefore was subject to the vice of duplicity.
We do not think it necessary to discuss the other matters urged by appellant in his motion for rehearing, believing they were sufficiently' discussed and properly disposed of in our original opinion.
The motion for rehearing is overruled.
Overruled.