People v. Boo Doo Hong

BELCHER, C. The defendant was charged by information, Sled in the superior court of Tehama County, with the crime of willfully and unlawfully practicing medicine in the state of California, without having first procured a certificate to so practice as required by law. He demurred to the information, and, his demurrer being overruled, then pleaded not guilty. He was subsequently tried and found guilty of the offense charged, and judgment was entered that he pay a fine of three hundred and fifty dollars, et cetera. From that judgment and an order denying his motion for a new trial he has appealed.

The demurrer was properly overruled. The facts stated in the information were sufficient to constitute a public offense, and it was not necessary to allege the existence of the medical societies referred to. (People v. O’Leary, 77 Cal. 30.)

At the trial uncontradicted evidence was introduced by the prosecution sufficiently showing that for several months prior to the filing of the information defendant had been practicing medicine at Bed Bluff, in the county of Tehama (People v. Lee Wah, 71 Cal. 80), but no evidence was introduced on either side showing, or tending to show, that defendant had or had not a certificate to so practice, as required by law. (Stats. 1875-76, p. 792; Stats. 1877-78, p. 918.) And at the conclusion of the evidence the court instructed the jury quite fully upon all the questions of law involved in the case, and, among other things, told them, in effect, that the burden was upon the defendant to establish that he had a certificate to practice medicine as provided by law, and, if he failed to prove that he had such certificate, then it must be taken as true that he had not procured a certificate to so practice medicine.

It is contended for appellant that the said instruction was er[608]roneons and misleading, and that the verdict was not justified by the evidence, because in a criminal action the defendant is presumed to be innocent until he is proved guilty beyond a reasonable doubt, and this presumption continues through the entire trial, and the burden is upon the people to establish his guilt by proving every material allegation of the information; and that as the information charged that defendant had practiced medicine without having a certificate to do so, it devolved upon the people to prove that fact, and having entirely failed to offer any such proof he ought not to have been convicted, and his motion for new trial should have been granted.