Ex parte McNulty , 77 Cal. 164 ( 1888 )

McFarland, J.

The petitioner, P. Roscoe McNulty, is imprisoned by force of a judgment of the lower court upon conviction of what is asserted to be a crime under the act of the legislature entitled “ An act supplemental to and amendatory of an act to regulate the practice of medicine in the state of California” (approved April 3, 1876), which became a law April 1, 1878. (Stats. 1877-78, p. 918.) This act requires, generally, that every person practicing medicine or surgery shall possess certain qualifications, and shall have issued to him a certificate from one of three boards of examiners, each board to be appointed by one of three certain medical societies named in said act. It is provided, also, that a certificate may be revoked by the board granting it, when its holder has been guilty of “ unprofessional conduct.”

The first contention of counsel for petitioner, that the statute above mentioned is in toto unconstitutional, and therefore entirely void, has been determined the other way by this court in Ex parte Frazer, 54 Cal. 94. In that case it was held that the general frame-work of this statute was not in violation of the constitution, although no opinion was expressed as to the validity of certain independent provisions which it contains. The contention that the police court of San Francisco, in which the prosecution was commenced, had no jurisdiction of the offense sought to be charged against petitioner, because it is punishable by imprisonment for 365 days, need not, under the view which we take of another point in the case, be here determined. And the same may be said of the position taken by petitioner, that, under the authority of Ex parte Cox, 63 Cal. 21, the legislature could not delegate to the board of examiners the “power to declare by rules and regulations what should constitute-“unprofessional conduct,” and thus, by its own act, establish a crime; and, furthdr, that if such power .could be delegated, then, as in this case no rules declaring what should con-’ stitute unprofessional conduct had been adopted, petitioner is in the position of one who has been convicted under a void ex post facto law. There are also some other points made by counsel, which we do not think necessary to be here.discussed. The complaint upon which petitioner was tried was insufficient, and, in our opinion, the demurrer to it should have been sustained. It is true that, generally, the sufficiency of a complaint or an indictment cannot be inquired into on habeas corpus. Where the complaint, though inartificially drawn, shows an evident attempt to state the essential facts which constitute the crime sought to be charged, the defect in the statement would not warrant the discharge of the defendant. It is true, also, that upon habeas corpus the court will not, ordinarily, look into the sufficiency of the evidence to prove the facts which constitute the offense. But when the facts charged, or attempted to be charged, in the complaint or indictment, and proved by the evidence, do not constitute any public offense, then the' defendant will, upon habeas corpus, be discharged. (Ex parte Kearny, 55 Cal. 215.) Now, in this case it clearly appears that in the police court, and in the superior court to which an appeal was taken, the case was tried, and the petitioner convicted upon the theory that the complaint stated, or attempted to state, and the evidence showed, the following facts, and none other, viz.: The petitioner, having regularly received a diploma from a recognized medical college of Pennsylvania, made application on January 8, 1884, to one of the boards of examiners constituted under said statute above mentioned for a certificate; and on said day said board issued to him a certificate in due form, as provided for in said statute, and he commenced the practice of his profession. Afterwards, on August 25, 1885, the Said board made an order revoking said certificate for “ unprofessional conduct” on the part of petitioner, consisting in this: that he had, in the San Francisco Chronicle newspaper, and in a printed pamphlet, advertised himself as a specialist in certain enumerated diseases. After the action by the board, the petitioner continued to practice medicine, and for thus continuing to practice he was charged, tried, convicted, and punished. But in our opinion this conduct on the part of petitioner did not constitute a criminal offense, or subject him to any punishment under the statute in question. Section 1 of the said act of 1878, after providing for the certificate, declares that “ such certificate shall be conclusive as to the right of the person named therein to practice medicine and surgery in any part of the state.” And the only penal clause, or clause creating a criminal offense, in the act is contained in section 7, and is as follows: “Any person practicing medicine or surgery in this state, without first having procured a certificate so to do from one of the boards of examiners appointed by one of the societies mentioned in section 2 of this act, shall be guilty of a misdemeanor, and shall be subject to the penalties provided in section 13 of the act, to which, this act is amendatory and supplemental.” Nothing is declared in this act to be a crime except practicing “ without first having procured a certificate.” Practicing after an order of the board revoking the certificate for unprofessional conduct is not declared to be a crime, and no penalty is attached to it. Respondent’s position really is, that the legislature must have intended such conduct to be -a criminal offense. It would be vain to inquire what intent lurked in the minds of the persons who happened to be members of the legislature when the act was passed. It certainly would be a forced thing to imagine their intent to be that a man should lose his liberty for the violation of any vague, undefined notion of unprofessional conduct, which might, after the fact, be entertained by certain individuals constituting a board of examiners. At all events, the question whether or not the conduct in question is made a crime must be determined from the language used in the statute, and we find there nothing that declares such conduct to be a criminal offense. Nor is there anything in what is left , of the act of 1876 (although no reference is made to that act in the complaint) which makes the conduct ascribed to petitioner a crime. Constructive crimes — crimes built up by courts with the aid of inference, implication, and strained interpretation—are repugnant to the spirit and letter of English and American criminal law. Let the petitioner be discharged.

Sharpstein, J., concurred.

Searls, C. J., dissented.