Ex parte McNulty

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 [166]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