# McKnight v. State

> Court of Criminal Appeals of Texas · March 23, 1955 · 161 Tex. Crim. 472

URL: https://www.frixlaw.com/law-library/cases/9768502

## Case

- **Full name:** W. H. McKnight, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 23, 1955
- **Citations:** 161 Tex. Crim. 472; 278 S.W.2d 150; 1955 Tex. Crim. App. LEXIS 1460
- **Precedential status:** Published
- **Opinion:** Dissent by Davidson
- **Judges:** Davidson, Morrison
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768502

## Opinion text

*154 DAVIDSON, Judge
(dissenting).
As pointed out in our original opinion, the only offense which was charged against the appellant and for which he was convicted is that he made an impression of the upper gum of each of the state’s witnesses for the purpose of constructing an upper plate. The making of the impression of the gums was the essential element of the offense charged.
The state assumed the burden of proving those allegations, and if it did not so d(^ then this conviction can not stand.
Again, as pointed out in the original opinion, the testimony of the two state’s witnesses upon that point was set out, by which it is shown that the two witnesses positively and definitely and unequivocably testified that appellant did not make an impression of the upper gums. Those witnesses surely knew .the truth of what they were testifying. No one could have known better than .they whether appellant took gn impression of their gums.
All the facts, and those to which my brethren refer, show that whatever impression was made by appellant was made of the existing plates of the witnesses, from which they desired new plates to be made.
The making or construction of plates, however, is not unlawful under the dental practice act, nor is it the practice of dentistry, for Art. 753, Vernon’s P.C., expressly provides that the dental practice act does not apply to “persons doing laboratory work on inert matter only, and who do not solicit or obtain work, by any means, from a person or persons not a licensed dentist actually engaged in the practice of dentistry and who do not act as the agents or solicitors of, or have any interest whatsoever, in, any dental office, practice, or the receipts therefrom.”
So a person may take inert matter and, with that, construct a dental plate without practicing dentistry. The process which that person uses or employs in constructing a plate, whether by the use of other dental plates or not, is a matter over which the dental practice act has no control, because such is not the practice of dentistry.
When it came on to draw the information in this case, the state, of necessity, knew that a violation of the dental practice act under the provision here employed could occur only upon facts showing that an impression-of the gums was made or undertaken to be made for the purpose of making a dental plate and, for that reason, based its case upon the allegation that appellant undertook to make and did make an impression of the upper gums of the state’s witnesses for the purpose of making a plate.
The practice of dentistry is regulated and authorized to be regulated by law because it is a matter that relates to the public health; of necessity, the regulations appertaining thereto must relate to that subject.
The person working only on or with inert matter can hardly be said to be engaging in a business that relates to the public health or engaged in the practice of dentistry.
The facts are insufficient to show that the appellant, by constructing the plates for the state’s witnesses without taking an impression of their gums, was engaged in the practice of dentistry.
I dissent, therefore, from the affirmance of this conviction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768502. Public record. Not legal advice.