RA 2382
persons:
ARTICLE III
THE BOARD OF MEDICAL EXAMINERS;
REGISTRATION OF PHYSICIANS
Section 8. Prerequisite to the practice of
medicine. No person shall engage in the practice
of medicine in the Philippines unless he is at least
twenty-one years of age, has satisfactorily
passed the corresponding Board Examination,
and is a holder of a valid Certificate of
Registration duly issued to him by the Board of
Medical Examiners.
Section 10. Acts constituting practice of
medicine. A person shall be considered as
engaged in the practice of medicine (a) who
shall, for compensation, fee, salary or reward in
any form, paid to him directly or through
another, or even without the same, physical
examine any person, and diagnose, treat,
operate or prescribe any remedy for any human
disease, injury, deformity, physical, mental or
physical condition or any ailment, real or
imaginary, regardless of the nature of the
remedy or treatment administered, prescribed or
recommended; or (b) who shall, by means of
signs, cards, advertisements, written or printed
matter, or through the radio, television or any
other means of communication, either offer or
undertake by any means or method to diagnose,
treat, operate or prescribe any remedy for any
human disease, injury, deformity, physical,
mental or physical condition; or (c) who shall use
the title M.D. after his name.
Section 11. Exemptions. The preceding section
shall not be construed to affect (a) any medical
student duly enrolled in an approved medical
college or school under training, serving without
any professional fee in any government or
private hospital, provided that he renders such
service under the direct supervision and control
of a registered physician; (b) any legally
registered dentist engaged exclusively in the
practice of dentistry; (c) any duly registered
masseur or physiotherapist, provided that he
applies massage or other physical means upon
written order or prescription of a duly registered
physician, or provided that such application of
massage or physical means shall be limited to
physical or muscular development; (d) any duly
registered optometrist who mechanically fits or
sells lenses, artificial eyes, limbs or other similar
appliances or who is engaged in the mechanical
examination of eyes for the purpose of
constructing or adjusting eye glasses, spectacles
and lenses; (e) any person who renders any
service gratuitously in cases of emergency, or in
places where the services of a duly registered
physician, nurse or midwife are not available; (f)
any person who administers or recommends any
household remedy as per classification of existing
Pharmacy Laws; and (g) any psychologist or
mental hygienist in the performance of his duties,
provided such performance is done in conjunction
with a duly registered physician.
Section 12. Limited practice without any
certificate of registration. Certificates of
registration shall not be required of the following
(a) Physicians and surgeons from other countries
called in consultation only and exclusively in
specific and definite cases, or those attached to
international bodies or organization assigned to
perform certain definite work in the Philippines
provided they shall limit their practice to the
specific work assigned to them and provided
further they shall secure a previous authorization
from the Board of Medical Examiners.
(b) Commissioned medical officers of the United
States armed forces stationed in the Philippines
while rendering service as such only for the
members of the said armed forces and within the
limit of their own respective territorial
jurisdiction.
(c) Foreign physicians employed as exchange
professors in special branches of medicine or
surgery whose service may in the discretion of
the Board of Medical Education, be necessary.
(d) Medical students who have completed the
first four years of medical course, graduates of
medicine and registered nurses who may be
given limited and special authorization by the
Secretary of Health to render medical services
during epidemics or national emergencies
whenever the services of duly registered
physicians are not available. Such authorization
shall automatically cease when the epidemic or
national emergency is declared terminated by the
Secretary of Health.
REPUBLIC ACT No. 4224
"Sec. 10. Acts constituting practice of medicine. A
person shall be considered as engaged in the
practice of medicine (a) who shall, for
compensation, fee, salary or reward in any form
paid to him directly or through another, or even
without the same, physically examine any
person, and diagnose, treat, operate or prescribe
any remedy for human disease, injury, deformity,
physical, mental, psychical condition or any
ailment, real or imaginary, regardless of the
nature of the remedy or treatment administered,
prescribed or recommended; or (b) who shall by
means of signs, cards, advertisements, written or
printed matter, or through the radio, television or
any other means of communication, either offer
or undertake by any means or method to
diagnose, treat, operate or prescribe any remedy
for any human disease, injury, deformity,
physical, mental or psychical condition; or (c)
who shall falsely use the title of M.D. after his
name.
"Sec. 11. Exemptions. The preceding section shall
not be construed to affect (a) any medical
student duly enrolled in an approved medical
college or school, or graduate under training,
serving without any professional fee in any
government or private hospital, provided that he
render such service under the direct supervision
and control of a registered physician; (b) any
legally registered dentist engaged exclusively in
the practice of dentistry; (c) any duly registered
masseur or physiotherapist, provided that he
applies massage or other physical means upon
written order or prescription of a duly registered
physician, or provided that such application of
massage or physical means shall be limited to
physical or muscular development; (d) any duly
registered optometrist who mechanically fits or
sells lenses, artificial eyes, limbs or other similar
appliances or who is engaged in the mechanical
examination of eyes for the purpose of
constructing or adjusting eyeglasses, spectacles
and lenses; (e) any person who renders any
service gratuitously in cases of emergency, or in
places where the services of a duly registered
physician, nurse or midwife are not available; (f)
any person who administers or recommends any
household remedy as per classification of existing
Pharmacy Laws; (g) any clinical psychologist, or
mental hygienist, in the performance of his duties
in regard to patients with psychiatric problems,
provided such performance is done with the
prescription and direct supervision of a duly
registered physician, and (h) prosthetists who fit
artificial limbs under the supervision of a
registered physician.

"Sec. 12. Limited practice without any certificate

of registration. Certificates of registration shall
not be required of the following persons:

"(a) Physicians and surgeons from other

countries called in consultation only and
exclusively in specific and definite case, or
those attached to international bodies or
organizations assigned to perform certain
definite work in the Philippines, provided
they shall limit their practice to the
specific work assigned to them and
provided further they shall secure a
previous authorization from the Board of
Medical Examiners.

"(b) Commissioned medical officers of the

United States Armed Forces stationed in
the Philippines while rendering service as
such only for the members of the said
armed forces and within the limit of their
own respective territorial jurisdiction.

"(c) Foreign physicians employed as

exchange professors in special branches of
medicine or surgery whose service may,
upon previous authorization of the Board
of Medical Examiners, be necessary.

"(d) Medical students who have completed

the first four years of medical course,
graduates of medicine and registered
nurses who may be given limited and
special authorization by the Secretary of
Health to render services during epidemics
or national emergencies whenever the
services of duly registered physicians are
not available. Such authorization shall
automatically cease when the epidemic or
national emergency is declared terminated
by the Secretary of Health.

Approved: June 19, 1965

People v. Handzik
410 Ill. 295 (1951)
102 N.E.2d 340
THE PEOPLE OF THE STATE OF ILLINOIS,
Defendant in Error, v. E.O. HANDZIK, Plaintiff in
Error.
No. 31906.
Supreme Court of Illinois.
Opinion filed November 27, 1951.
*296 *297 FREDERICK J. BERTRAM, of Chicago,
for plaintiff in error.
IVAN A. ELLIOTT, Attorney General, of
Springfield, and JOHN S. BOYLE, State's
Attorney, of Chicago, (JOHN T. GALLAGHER,
RUDOLPH L. JANEGA, ARTHUR F. MANNING, and
WILLIAM J. McGAH, JR., all of Chicago, of
counsel,) for the People.
Judgment affirmed.
*298 Mr. JUSTICE MAXWELL, delivered the
opinion of the court:
Plaintiff in error, E.O. Handzik, also known as
Esther O. Hankzik, was tried and convicted of a
violation of the Medical Practice Act upon
information filed in the county court of Cook
County. She comes here directly from that court
by writ of error to review the verdict of the jury
and the sentence to pay a fine of $500. Direct
review lies to this court because she directly
challenged the constitutionality of sections 24,
36, and 37 of this act in the lower court and has
properly preserved those questions for review
here.
It appears from the evidence that plaintiff in
error, who will be hereinafter referred to as
defendant, was a woman about 60 years old at
the time of the hearing, was a native of Sweden,
had been in this country about 27 years and was
a citizen. She resided in her second-floor
apartment in the city of Chicago with her
husband, Frank Handzik. She claimed to be a
faith healer or healing minister ordained by the
Central Baptist Church of Chicago and was a
member of a sect which believed in and practiced
divine or faith healing. The prosecuting witness,
Mrs. Frances Dickerson, was an investigator for
the Department of Registration and Education of
the State of Illinois. She testified that on
November 15, 1949, she went to the defendant's
apartment to investigate a complaint which the
Department had received about one Dr. Frank
Handzik; that defendant answered the door,
witness gave her the alias of Bertha Baker, and
asked to see Dr. Frank Handzik; that defendant
advised her that Dr. Frank Handzik was not in
and asked her if she wanted a treatment; that
she replied in the affirmative and defendant then
told the witness that she was Dr. E.O. Handzik,
that she did the same kind of work as Dr. Frank
Handzik and invited her into the apartment; that
defendant then asked her where she had her pain
and the witness told her it was between her
shoulders, *299 and defendant told her she had
arthritis; that defendant then asked her if she
believed in God and when witness replied that
she did defendant requested a donation of $4 for
her church and told witness that she would give
her a treatment, that she too had had arthritis
and had cured herself. The witness then
described the treatment given to her which
consisted of rapid inhaling, exhaling, and drinking
two glasses of water, one described as "holy"
water and the other as "atomic" water; that
defendant also went through the rapid breathing
process and stated that the purpose was to make
one hot and make contact with God easier; that
defendant placed her hands on the witness and
prayed; that defendant told the witness that she
also had machines, the "Estemeter" and "Vita
Ray" machines, and if witness did not get relief
from the treatment that she would apply "hot
wires." The witness also testified that defendant
gave her a printed card bearing the names of Dr.
Esther O. Handzik and Dr. Frank A. Handzik,
underneath which names was printed "Christian
Psychophysicians," and showing the address,
phone number and office hours. This card was
introduced in evidence. The defendant testified
that she believed in, had studied and practiced
divine healing through prayer as a minister of her
church. She denied charging a fee but admitted
that she accepted a donation for her church and
stated that this donation was usually divided, 10
per cent to the church and 90 per cent to her.
She denied making any physical examination or
diagnosis. She denied giving the witness the card
but stated that she knew they were in the house.
She stated that she was employed as a tailor to
earn her living and did not depend upon any
income from healing treatments for that purpose.
The jury found her guilty under counts 3, 4, and
5 of the information and made no finding under
counts 1 and 2. Count 3 charged that defendant,
on November 15, 1949, in the city of Chicago,
County of Cook, "not then and *300 there
possessing in full force and virtue a valid and
existing license issued by the authority of the
State of Illinois to practice the treatment of
human ailments in any manner, * * * did then
and there unlawfully suggest, recommend and
prescribe the loud and rapid inhaling and
exhaling and the drinking of water for the relief
and cure of the supposed ailment of Frances
Dickerson, also known as Bertha Baker, with the
intention of receiving therefor a fee in the sum of
four ($4.00) dollars." Count 4 alleged that the
defendant, on November 15, 1949, not
possessing a license of the State of Illinois to
practice the treatment of human ailments in any
manner, did then and there "within the said
County of Cook, unlawfully attach the title
Doctor, Physician, Surgeon, M.D. or some other
words or abbreviation to his name indicative that
he was engaged in the treatment of human
ailments as a business, to wit: Did then and
there unlawfully attach the title `Doctor' to her
name, indicative that she was engaged in the
treatment of human ailments as a business, by
informing patient that she was `Dr. E.O.
Handzik,' all in violation of Section 24 of an Act,"
etc. Count 5 alleged that the defendant, on
November 15, 1949, not possessing a license of
the State of Illinois to practice the treatment of
human ailments in any manner, did then and
there "within the said County of Cook unlawfully
maintain an office for examination or treatment
of persons afflicted * * * with any ailment, to
wit: Did then and there unlawfully maintain an
office for the examination and treatment of
persons afflicted and supposed to be afflicted
with any ailments, at 2573 Lyndale Avenue,
Chicago, Illinois, all in violation of Section 24 of
an Act," etc.
Defendant's written motions to quash the
information, for a directed verdict, in arrest of
judgment and for a new trial were all overruled
by the court.
Defendant first contends that section 24 of the
Medical Practice Act (Ill. Rev. Stat. 1949, chap.
91, par. 16i,) is *301 unconstitutional because
(1) the general language used in section 24 is
restricted in its operation by the exceptions made
by section 37 of the same act and is therefore
void, and also because section 24 provides for
punishment for "any" person, which term
includes those exempted by section 37; (2) the
subject matter of section 24 is not embraced or
expressed in the title of the act; (3) the penalties
authorized by section 24 inure to the Department
(section 36) which is in effect an appropriation or
diversion of public funds in violation of sections
16 to 20, article IV of the Illinois constitution; (4)
the provisions of section 24, providing
punishment for any person using the titles
"Doctor" and "Physician," violate the due process
clause and constitute an abridgement of the
privileges of citizens of the United States; (5)
section 24 violates and infringes upon religious
freedom.
Section 24 of this act provides, in substance, that
if any person shall hold himself out to the public
as being engaged in the diagnosis or treatment of
human ailments; or shall suggest, recommend or
prescribe any form of treatment with the
intention of receiving any fee or gift, or any
compensation whatsoever; or shall profess to
heal any ailment or supposed ailment of another;
or shall maintain an office for examination or
treatment of any persons afflicted with any
ailment; or shall attach the title Doctor,
Physician, Surgeon, M.D. or any other word or
abbreviation to his name, indicative that he is
engaged in the treatment of human ailments as a
business; and shall not then possess in full force
and virtue a valid license issued by authority of
this State, shall be guilty of a misdemeanor, and
upon conviction shall be punished by a fine or
imprisonment in the county jail, or by both fine
and imprisonment.
Section 36 provides that all such fines shall inure
to the Department.
Section 37 provides that this act shall not apply
to certain named classes of persons, including
"persons treating *302 human ailments by prayer
or spiritual means as an exercise or enjoyment of
religious freedom."
Defendant's contention that section 24 is invalid
because the general language used therein is
repugant to section 37 is untenable. It is an
elementary rule of statutory construction that all
the parts of an act relating to the same subject
should be considered together and not each
alone, so that the purpose and intent of the
whole act can be ascertained and given effect as
consistent provisions to accomplish the purpose
intended. The provisions of section 37 merely
constitute exceptions to the general provisions of
section 24, and when the whole act is read
together there is no inconsistency or repugnancy.
Mason v. Finch, 2 Scam, 223; Burke v. Monroe
County, 77 Ill. 610; Thompson v. Bulson, 78 Ill.
277.
There is no merit in the contention that the
subject matter of section 24 is not embraced or
expressed in the title of the act. The object of the
provisions of section 13 of article IV of the
constitution, requiring the subject to be
expressed in the title of all acts of the General
Assembly, is to give information as to the subject
with which the act deals, and to prevent joining
in one act incongruous or unrelated matters.
(People v. McBride, 234 Ill. 146; People v.
Williams, 309 Ill. 492; People v. Jiras, 340 Ill.
208.) The title should express in general terms
the purpose of the act, and any provisions
germane to that purpose may be inserted so long
as they are not inconsistent with or foreign to the
general subject. The title of an act is not required
to be an index of all its provisions. (People v.
Sisk, 297 Ill. 314.) Where there is any doubt, it
should be resolved in favor of the validity of the
act. (Ritchie v. People, 155 Ill. 98; Fuller v.
People, 92 Ill. 182.) The title of the Medical
Practice Act is "An Act to revise the law in
relation to the practice of the treatment of
human ailments for the better protection of the
public health and *303 to prescribe penalties for
the violation hereof." Section 24 provides that
the doing of certain specified acts for the purpose
of treating human ailments, without a valid
license, constitutes a misdemeanor, and provides
penalties upon conviction thereof. The purpose
and object of the act, as set out in the title, is to
regulate the practice of treating human ailments.
The power to license is a common and
established method of regulating. The specific
acts prohibited by section 24 are all methods of
treating human ailments. Prohibiting certain
methods of treatment without a license is clearly
not inconsistent with or foreign to regulating the
practice of the treatment of human ailments, but
is germane to, and in furtherance of, the
purposes of the act for the better protection of
the public health.
Defendant's contention that the act is invalid
because section 36 provides that all fines shall
inure to the Department of Registration and
Education, instead of providing for such fines to
be paid to the State or the county for public use
and benefit, in violation of sections 16 to 20 of
article IV of the constitution, cannot be
sustained. We are unable to see how sections 16,
17, 18 and 19 of article IV could be interpreted to
apply in any manner to a statute making
disposition of fines. Sections 16, 17, and 18
apply only to appropriations made by the General
Assembly out of the State treasury and section
19 deals with extra pay for persons or on
contracts. Defendant's contention would have to
be based on the provisions of section 20 of this
article, which provides that the State shall never
pay, assume, or become responsible for the
debts or liabilities of, or in any manner give, loan
or extend its credit to or in aid of any public or
other corporation, association or individual. In
People v. Heise, 257 Ill. 443, the defendant
challenged the constitutionality of a statute which
provided that the court which convicted a
defendant of wife and child abandonment could
order the fine paid, in whole or *304 in part, to
the wife or guardian of the child. The defendant
there contended that this statute violated section
2 of the schedule and sections 1, 16, 17, 20 and
22 of article IV. We there held, as to sections 16
and 17, that they applied only to appropriations
from the State treasury, and that it was not
intended that section 20 of article IV should apply
in any manner to the disposition to be made of
fines and penalties for the violation of our
criminal statutes. The General Assembly has the
power to impose penalties and the power to
dispose of them, and section 36 of the Medical
Practice Act does not violate any of the
constitutional provisions relied on by defendant.
The defendant's contention that section 24
provides punishment for any person using the
titles "Doctor" and "Physician" without a valid
license ignores the plain language of the statute.
Not every use of the titles is punishable, but only
the use of the titles in an unlawful manner
"indicative that he is engaged in the treatment of
human ailments." (People v. DeYoung, 378 Ill.
256.) The licensing and control of persons who
represent to the public that they are trained and
qualified to treat human ailments is a valid and
essential exercise of the police power of the State
for the better protection of the public health.
(People v. Walder, 317 Ill. 524.) Within
constitutional limits the General Assembly is the
sole judge of the laws that shall be enacted for
the protection of the public health, and so long as
such laws do not invade inherent or constitutional
rights the determination of the General Assembly
is conclusive. The use of these titles is not an
inherent or constitutional right in everyone and
the General Assembly may regulate their use in
the treating of human ailments. It is common
knowledge that these titles, in general use as
applied to human ailments, have a connotation
indicating special qualifications and training to
diagnose and treat afflicted persons, and the
misuse of such titles could cause deceptions,
frauds and practices dangerous to the public
*305 health. Laws regulating the use of these
titles where health and even life itself are
involved are not unreasonable or arbitrary. We
think the prohibition of the use of such titles
"indicative that he is engaged in the treatment of
human ailments as a business" is reasonably
necessary and appropriate to accomplish the
legitimate objects and purposes of the Medical
Practice Act and within the police power of the
State. The validity of the Medical Practice Act of
1923 has been repeatedly affirmed by this court
and we have found that section 24 does not
violate the due process clause of the constitution.
People v. DeYoung, 369 Ill. 341, and cases cited.
Defendant's contention that section 24 violates
and infringes upon religious freedom is likewise
untenable. As heretofore pointed out, section 24
must be read in conjunction with section 37, and
that section specifically exempts "persons
treating human ailments by prayer or spiritual
means as an exercise or enjoyment of religious
freedom."
Defendant contends that counts 3, 4, and 5 of
the information were legally insufficient to charge
a crime or offense against the State of Illinois,
were insufficient to inform her of the nature and
cause of the accusation, and failed to negative
that she was exempt from the act, and that
therefore the trial court erred in overruling her
motions to quash the information and in arrest of
judgment. The three counts all charged
defendant with the crimes in the language of the
statute and then, under a videlicet, with specific
acts constituting violations of the act. Section 24
prescribes the precise acts which constitute
violations, and the information is predicated upon
these precise acts. Both the statute and the
information are clear and unambiguous and
informed the defendant of the exact nature of the
offense. Informations in similar language have
been upheld in People v. Shaver, 367 Ill. 339;
People v. Paderewski, 373 Ill. 197; People v.
Moe, 381 Ill. 235; People v. Rongetti, 395 Ill.
580; People v. DeYoung, 378 Ill. 256; *306 and
People v. Kabana, 388 Ill. 198. Failure to
negative that defendant was one of the exempted
class does not make the information insufficient.
We have frequently held that such exemptions or
exceptions are not a part of the description of the
offense and therefore need not be negatived in
the information. (People v. Boyden, 400 Ill. 409;
People ex rel. Courtney v. Prystalski, 358 Ill.
198; People v. Talbot, 322 Ill. 416; People v.
Green, 362 Ill. 171.) Such exemptions or
exceptions are matters of defense. People v.
Allen, 360 Ill. 36; People v. Saltis, 328 Ill. 494;
Sokel v. People, 212 Ill. 238.
The defendant contends the court erred in
overruling the motion for a directed verdict on
the grounds that all the evidence, both for the
State and the defendant, shows that this was
purely a case of faith healing and was an exercise
of her right of religious freedom. An examination
of the instructions reveals that the jury was
adequately instructed in regard to defendant's
claimed exemption, it heard the evidence and
observed the witnesses, and by its verdict found
the defendant was not one of the exempted
class. We cannot say that the evidence here, with
the legitimate inferences deducible therefrom, is
insufficient to support that verdict.
The defendant further contends that the
prosecution failed to prove that she had no
license, an essential allegation of the information,
and that the court erred in instructing the jury
that "It is not incumbent upon the People to
prove that allegation of the information; if the
defendant did not have such a license, it is a
matter of defense and you should not find the
defendant not guilty solely by reason of the fact
that there is no proof of evidence as to whether
the defendant did or did not have such a license."
The wording of this instruction is garbled and
confused but, if it says anything, it says that the
People are not required to prove the allegation of
the information that the defendant did not have a
license.

*307 Failure to have a license is an essential part

of the description of the offense, and if that was
not alleged the information would be vulnerable
to a motion to quash and would not support a
conviction. (People v. Prystalski, 358 Ill. 198.) As
a general rule, it is elementary that the State is
required to prove every essential averment of the
charge against the defendant. There usually is no
burden upon a defendant to disprove any
averment or even to make a defense. However,
there is an exception to this rule in this type of
case. In prosecutions for doing an act which the
State prohibits to be done by any person except
those who are duly licensed, the negative
averment that defendant had no license, being an
averment peculiarly within the knowledge of the
defendant, is taken as true, unless disproved by
the defendant. (Kettles v. People, 221 Ill. 221;
Noecker v. People, 91 Ill. 468; Williams v.
People, 121 Ill. 84; People v. Frankowsky, 371
Ill. 493; People v. Hollenbeck, 322 Ill. 443.)
Under the law as established by these cases the
State was not required to prove that defendant
had no license and the instruction was not
prejudicial error. Furthermore, we are unable to
see any unfairness or harm in applying this rule
here, where defendant took the stand and
testified.

In her 25 assignments of error the defendant has

raised objections to the court's rulings on the
evidence, the giving and refusing of various
instructions, the court's refusal to excuse one of
the jurors, and alleged prejudicial conduct of the
prosecuting attorney. The merit or weight of
none of these objections justifies extending this
opinion by a separate discussion of each of them.
Each has been carefully examined and none is
found to be prejudicial error. It appears from the
entire record that defendant has had a fair and
impartial trial in every respect.

Finding no prejudicial error in the record, the

judgment is affirmed.

Judgment affirmed.
G.R. No. 166097 July 14, 2008
BOARD OF MEDICINE, DR. RAUL FLORES
(now DR. JOSE S. RAMIREZ), in his capacity
as Chairman of the Board, PROFESSIONAL
REGULATION COMMISSION, through its
Chairman, HERMOGENES POBRE (now DR.
ALCESTIS M. GUIANG), Petitioners,
vs.
YASUYUKI OTA, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review
on Certiorari assailing the Decision1 of the Court
of Appeals (CA) in CA-G.R. SP No. 849452 dated
November 16, 2004 which affirmed the
Decision3 of the Regional Trial Court (RTC),
Branch 22, Manila, dated October 19, 2003.4
The facts are as follows:
Yasuyuki Ota (respondent) is a Japanese
national, married to a Filipina, who has
continuously resided in the Philippines for more
than 10 years. He graduated from Bicol Christian
College of Medicine on April 21, 1991 with a
degree of Doctor of Medicine.5 After successfully
completing a one-year post graduate internship
training at the Jose Reyes Memorial Medical
Center, he filed an application to take the medical
board examinations in order to obtain a medical
license. He was required by the Professional
Regulation Commission (PRC) to submit an
affidavit of undertaking, stating among others
that should he successfully pass the same, he
would not practice medicine until he submits
proof that reciprocity exists between Japan and
the Philippines in admitting foreigners into the
practice of medicine.6
Respondent submitted a duly notarized English
translation of the Medical Practitioners Law of
Japan duly authenticated by the Consul General
of the Philippine Embassy to Japan, Jesus I.
Yabes;7 thus, he was allowed to take the Medical
Board Examinations in August 1992, which he
subsequently passed.8
In spite of all these, the Board of Medicine
(Board) of the PRC, in a letter dated March 8,
1993, denied respondent's request for a license
to
practice medicine in the Philippines on the ground
that the Board "believes that no genuine
reciprocity can be found in the law of Japan as
there is no Filipino or foreigner who can possibly
practice there."9
Respondent then filed a Petition
for Certiorari and Mandamus against the Board
before the RTC of Manila on June 24, 1993, which
petition was amended on February 14, 1994 to
implead the PRC through its Chairman.10
In his petition before the RTC, respondent alleged
that the Board and the PRC, in refusing to issue
in his favor a Certificate of Registration and/or
license to practice medicine, had acted
arbitrarily, in clear contravention of the provision
of Section 20 of Republic Act (R.A.) No. 2382
(The Medical Act of 1959), depriving him of his
legitimate right to practice his profession in the
Philippines to his great damage and prejudice.11
On October 19, 2003, the RTC rendered its
Decision finding that respondent had adequately
proved that the medical laws of Japan allow
foreigners like Filipinos to be granted license and
be admitted into the practice of medicine under
the principle of reciprocity; and that the Board
had a ministerial duty of issuing the Certificate of
Registration and license to respondent, as it was
shown that he had substantially complied with
the requirements under the law.12 The RTC then
ordered the Board to issue in favor of respondent
the corresponding Certificate of Registration
and/or license to practice medicine in the
Philippines.13
The Board and the PRC (petitioners) appealed the
case to the CA, stating that while respondent
submitted documents showing that foreigners are
allowed to practice medicine in Japan, it was not
shown that the conditions for the practice of
medicine there are practical and attainable by a
foreign applicant, hence, reciprocity was not
established; also, the power of the PRC and the
Board to regulate and control the practice of
medicine is discretionary and not ministerial,
hence, not compellable by a writ of mandamus.14
The CA denied the appeal and affirmed the ruling
of the RTC.15
Hence, herein petition raising the following issue:
WHETHER THE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR IN
FINDING THAT RESPONDENT HAD
ESTABLISHED THE EXISTENCE OF
RECIPROCITY IN THE PRACTICE OF
MEDICINE BETWEEN THE PHILIPPINES
AND JAPAN.16
Petitioners claim that: respondent has not
established by competent and conclusive
evidence that reciprocity in the practice of
medicine exists between the Philippines and
Japan. While documents state that foreigners are
allowed to practice medicine in Japan, they do
not similarly show that the conditions for the
practice of medicine in said country are practical
and attainable by a foreign applicant. There is no
reciprocity in this case, as the requirements to
practice medicine in Japan are practically
impossible for a Filipino to comply with. There are
also ambiguities in the Medical Practitioners Law
of Japan, which were not clarified by respondent,
i.e., what are the provisions of the School
Educations Laws, what are the criteria of the
Minister of Health and Welfare of Japan in
determining whether the academic and technical
capability of foreign medical graduates are the
same or better than graduates of medical schools
in Japan, and who can actually qualify to take the
preparatory test for the National Medical
Examination. Consul General Yabes also stated
that there had not been a single Filipino who was
issued a license to practice medicine by the
Japanese Government. The publication showing
that there were foreigners practicing medicine in
Japan, which respondent presented before the
Court, also did not specifically show that Filipinos
were among those listed as practicing said
profession.17 Furthermore, under Professional
Regulation Commission v. De Guzman,18 the
power of the PRC and the Board to regulate and
control the practice of medicine includes the
power to regulate admission to the ranks of those
authorized to practice medicine, which power is
discretionary and not ministerial, hence, not
compellable by a writ of mandamus.19
Petitioners pray that the CA Decision dated
November 16, 2004 be reversed and set aside,
that a new one be rendered reinstating the Board
Order dated March 8, 1993 which disallows
respondent to practice medicine in the
Philippines, and that respondent's petition before
the trial court be dismissed for lack of merit.20
In his Comment, respondent argues that: Articles
2 and 11 of the Medical Practitioners Law of
Japan and Section 9 of the Philippine Medical Act
of 1959 show that reciprocity exists between the
Philippines and Japan concerning the practice of
medicine. Said laws clearly state that both
countries allow foreigners to practice medicine in
their respective jurisdictions as long as the
applicant meets the educational requirements,
training or residency in hospitals and pass the
licensure examination given by either country.
Consul General Yabes in his letter dated January
28, 1992 stated that "the Japanese Government
allows a foreigner to practice medicine in Japan
after complying with the local requirements." The
fact that there is no reported Filipino who has
successfully penetrated the medical practice in
Japan does not mean that there is no reciprocity
between the two countries, since it does not
follow that no Filipino will ever be granted a
medical license by the Japanese Government. It
is not the essence of reciprocity that before a
citizen of one of the contracting countries can
demand its application, it is necessary that the
interested citizen’s country has previously
granted the same privilege to the citizens of the
other contracting country.21 Respondent further
argues that Section 20 of the Medical Act of
195922 indicates the mandatory character of the
statute and an imperative obligation on the part
of the Board inconsistent with the idea of
discretion. Thus, a foreigner, just like a Filipino
citizen, who successfully passes the examination
and has all the qualifications and none of the
disqualifications, is entitled as a matter of right to
the issuance of a certificate of registration or a
physician’s license, which right is enforceable
by mandamus.23
Petitioners filed a Reply24 and both parties filed
their respective memoranda25 reiterating their
arguments.
The Court denies the petition for lack of merit.
There is no question that a license to practice
medicine is a privilege or franchise granted by
the government.26 It is a right that is earned
through years of education and training, and
which requires that one must first secure a
license from the state through professional board
examinations.27
Indeed,
[T]he regulation of the practice of medicine in all
its branches has long been recognized as a
reasonable method of protecting the health and
safety of the public. That the power to regulate
and control the practice of medicine includes the
power to regulate admission to the ranks of those
authorized to practice medicine, is also well
recognized. Thus, legislation and administrative
regulations requiring those who wish to practice
medicine first to take and pass medical board
examinations have long ago been recognized as
valid exercises of governmental power. Similarly,
the establishment of minimum medical
educational requirements - i.e., the completion of
prescribed courses in a recognized medical school
- for admission to the medical profession, has
also been sustained as a legitimate exercise of
the regulatory authority of the state."28
It must be stressed however that the power to
regulate the exercise of a profession or pursuit of
an occupation cannot be exercised by the State
or its agents in an arbitrary, despotic, or
oppressive manner. A political body which
regulates the exercise of a particular privilege
has the authority to both forbid and grant such
privilege in accordance with certain conditions. As
the legislature cannot validly bestow an arbitrary
power to grant or refuse a license on a public
agency or officer, courts will generally strike
down license legislation that vests in public
officials discretion to grant or refuse a license to
carry on some ordinarily lawful business,
profession, or activity without prescribing definite
rules and conditions for the guidance of said
officials in the exercise of their power.29
R.A. No. 2382 otherwise known as the Medical
Act of 1959 states in Section 9 thereof that:
Section 9. Candidates for Board Examinations.-
Candidates for Board examinations shall have the
following qualifications:
1. He shall be a citizen of the Philippines or a
citizen of any foreign country who has submitted
competent and conclusive documentary evidence,
confirmed by the Department of Foreign Affairs,
showing that his country’s existing laws permit
citizens of the Philippines to practice medicine
under the same rules and regulations governing
citizens thereof;
xxxx
Presidential Decree (P.D.) No. 223 30 also provides
in Section (j) thereof that:
j) The [Professional Regulation] Commission
may, upon the recommendation of the Board
concerned, approve the registration of and
authorize the issuance of a certificate of
registration with or without examination to a
foreigner who is registered under the laws of his
country: Provided, That the requirement for the
registration or licensing in said foreign state or
country are substantially the same as those
required and contemplated by the laws of the
Philippines and that the laws of such foreign state
or country allow the citizens of the Philippines to
practice the profession on the same basis and
grant the same privileges as the subject or
citizens of such foreign state or country:
Provided, finally, That the applicant shall submit
competent and conclusive documentary evidence,
confirmed by the Department of Foreign Affairs,
showing that his country's existing laws permit
citizens of the Philippines to practice the
profession under the rules and regulations
governing citizens thereof. The Commission is
also hereby authorized to prescribe additional
requirements or grant certain privileges to
foreigners seeking registration in the Philippines
if the same privileges are granted to or some
additional requirements are required of citizens of
the Philippines in acquiring the same certificates
in his country;
xxxx
As required by the said laws, respondent
submitted a copy of the Medical Practitioners Law
of Japan, duly authenticated by the Consul
General of the Embassy of the Philippines in
Japan, which provides in Articles 2 and 11, thus:
Article 2. Anyone who wants to be medical
practitioner must pass the national examination
for medical practitioner and get license from the
Minister of Health and Welfare.
xxxx
Article 11. No one can take the National Medical
Examination except persons who conform to one
of the following items:
1. Persons who finished regular medical
courses at a university based on the
School Education Laws (December 26,
1947) and graduated from said university.
2. Persons who passed the preparatory
test for the National Medical Examination
and practiced clinics and public sanitation
more than one year after passing the said
test.
3. Persons who graduated from a foreign
medical school or acquired medical
practitioner license in a foreign country,
and also are recognized to have the same
or more academic ability and techniques
as persons stated in item 1 and item 2 of
this article.31
Petitioners argue that while the Medical
Practitioners Law of Japan allows foreigners to
practice medicine therein, said document does
not show that conditions for the practice of
medicine in said country are practical and
attainable by a foreign applicant; and since the
requirements are practically impossible for a
Filipino to comply with, there is no reciprocity
between the two countries, hence, respondent
may not be granted license to practice medicine
in the Philippines.
The Court does not agree.
R.A. No. 2382, which provides who may be
candidates for the medical board examinations,
merely requires a foreign citizen to submit
competent and conclusive documentary evidence,
confirmed by the Department of Foreign Affairs
(DFA), showing that his country’s existing laws
permit citizens of the Philippines to practice
medicine under the same rules and regulations
governing citizens thereof.
Section (j) of P.D. No. 223 also defines the
extent of PRC's power to grant licenses, i.e., it
may, upon recommendation of the board,
approve the registration and authorize the
issuance of a certificate of registration with or
without examination to a foreigner who is
registered under the laws of his country,
provided the following conditions are met: (1)
that the requirement for the registration or
licensing in said foreign state or country are
substantially the same as those required and
contemplated by the laws of the Philippines; (2)
that the laws of such foreign state or country
allow the citizens of the Philippines to practice
the profession on the same basis and grant the
same privileges as the subject or citizens of such
foreign state or country; and (3) that the
applicant shall submit competent and conclusive
documentary evidence, confirmed by the DFA,
showing that his country's existing laws permit
citizens of the Philippines to practice the
profession under the rules and regulations
governing citizens thereof.
The said provision further states that the PRC is
authorized to prescribe additional requirements
or grant certain privileges to foreigners seeking
registration in the Philippines if the same
privileges are granted to or some additional
requirements are required of citizens of the
Philippines in acquiring the same certificates in
his country.
Nowhere in said statutes is it stated that the
foreign applicant must show that the conditions
for the practice of medicine in said country are
practical and attainable by Filipinos. Neither is it
stated that it must first be proven that a Filipino
has been granted license and allowed to practice
his profession in said country before a foreign
applicant may be given license to practice in the
Philippines. Indeed, the phrase used in both R.A.
No. 2382 and P.D. No. 223 is that:
[T]he applicant shall submit] competent and
conclusive documentary evidence, confirmed by
the Department of Foreign Affairs, showing that
his country's existing laws permit citizens of the
Philippines to practice the profession [of
medicine] under the [same] rules and regulations
governing citizens thereof. x x x (Emphasis
supplied)
It is enough that the laws in the foreign country
permit a Filipino to get license and practice
therein. Requiring respondent to prove first that
a Filipino has already been granted license and is
actually practicing therein unduly expands the
requirements provided for under R.A. No. 2382
and P.D. No. 223.
While it is true that respondent failed to give
details as to the conditions stated in the Medical
Practitioners Law of Japan -- i.e., the provisions
of the School Educations Laws, the criteria of the
Minister of Health and Welfare of Japan in
determining whether the academic and technical
capability of foreign medical graduates are the
same as or better than that of graduates of
medical schools in Japan, and who can actually
qualify to take the preparatory test for the
National Medical Examination - respondent,
however, presented proof that foreigners are
actually practicing in Japan and that Filipinos are
not precluded from getting a license to practice
there.
Respondent presented before the trial court a
Japanese Government publication, Physician-
Dentist-Pharmaceutist Survey, showing that
there are a number of foreign physicians
practicing medicine in Japan.32 He also presented
a letter dated January 28, 1992 from Consul
General Yabes,33 which states:
Sir:
With reference to your letter dated 12 January
1993, concerning your request for a Certificate of
Confirmation for the purpose of establishing a
reciprocity with Japan in the practice of medical
profession relative to the case of Mr. Yasuyuki
Ota, a Japanese national, the Embassy wishes to
inform you that inquiries from the Japanese
Ministry of Foreign Affairs, Ministry of Health and
Welfare as well as Bureau of Immigration yielded
the following information:
1. They are not aware of a Filipino
physician who was granted a license by
the Japanese Government to practice
medicine in Japan;
2. However, the Japanese Government
allows a foreigner to practice medicine in
Japan after complying with the local
requirements such as holding a valid visa
for the purpose of taking the medical
board exam, checking the applicant's
qualifications to take the examination,
taking the national board examination in
Japanese and filing an application for the
issuance of the medical license.
Accordingly, the Embassy is not aware of a single
Filipino physician who was issued by the
Japanese Government a license to practice
medicine, because it is extremely difficult to pass
the medical board examination in the Japanese
language. Filipino doctors here are only allowed
to work in Japanese hospitals as trainees under
the supervision of a Japanese doctor. On certain
occasions, they are allowed to show their medical
skills during seminars for demonstration purposes
only. (Emphasis supplied)
Very truly yours,
Jesus I. Yabes
Minister Counsellor &
Consul General
From said letter, one can see that the Japanese
Government allows foreigners to practice
medicine therein provided that the local
requirements are complied with, and that it is not
the impossibility or the prohibition against
Filipinos that would account for the absence of
Filipino physicians holding licenses and practicing
medicine in Japan, but the difficulty of passing
the board examination in the Japanese language.
Granting that there is still no Filipino who has
been given license to practice medicine in Japan,
it does not mean that no Filipino will ever be able
to be given one.
Petitioners next argue that as held in De
Guzman, its power to issue licenses is
discretionary, hence, not compellable
by mandamus.
The Court finds that the factual circumstances of
De Guzman are different from those of the case
at bar; hence, the principle applied therein
should be viewed differently in this case. In De
Guzman, there were doubts about the integrity
and validity of the test results of the examinees
from a particular school which garnered
unusually high scores in the two most difficult
subjects. Said doubts called for serious inquiry
concerning the applicants’ satisfactory
compliance with the Board requirements.34 And
as there was no definite showing that the
requirements and conditions to be granted
license to practice medicine had been
satisfactorily met, the Court held that the writ
of mandamus may not be granted to secure said
privilege without thwarting the legislative will.35
Indeed, to be granted the privilege to practice
medicine, the applicant must show that he
possesses all the qualifications and none of the
disqualifications. It must also appear that he has
fully complied with all the conditions and
requirements imposed by the law and the
licensing authority.36
In De Guzman itself, the Court explained that:
A careful reading of Section 2037 of the Medical
Act of 1959 discloses that the law uses the word
"shall" with respect to the issuance of certificates
of registration. Thus, the petitioners [PRC] "shall
sign and issue certificates of registration to those
who have satisfactorily complied with the
requirements of the Board." In statutory
construction the term "shall" is a word of
command. It is given imperative meaning. Thus,
when an examinee satisfies the requirements for
the grant of his physician's license, the Board is
obliged to administer to him his oath and register
him as a physician, pursuant to Section 20 and
par. (1) of Section 22 of the Medical Act of
1959.38
In this case, there is no doubt as to the
competence and qualifications of respondent. He
finished his medical degree from Bicol Christian
College of Medicine. He completed a one-year
post graduate internship training at the Jose
Reyes Memorial Medical Center, a government
hospital. Then he passed the Medical Board
Examinations which was given on August 8, 1992
with a general average of 81.83, with scores
higher than 80 in 9 of the 12 subjects.

In fine, the only matter being questioned by

petitioners is the alleged failure of respondent to
prove that there is reciprocity between the laws
of Japan and the Philippines in admitting
foreigners into the practice of medicine.
Respondent has satisfactorily complied with the
said requirement and the CA has not committed
any reversible error in rendering its Decision
dated November 16, 2004 and Resolution dated
October 19, 2003.

WHEREFORE, the petition is hereby DENIED for

lack of merit.

SO ORDERED.
People v. Cole
[Crim. No. 5852. In Bank. Oct. 5, 1956.]
THE PEOPLE, Respondent, v. CHARLES E. COLE,
Appellant.
COUNSEL
William E. Jensen and Kenneth K. Casper for
Appellant.
Edmund G. Brown, Attorney General, Doris H.
Maier and F. G. Girard, Deputy Attorneys
General, for Respondent.
OPINION
GIBSON, C.J.
A jury found defendant guilty of first degree
murder and fixed his punishment at life
imprisonment. The principal questions raised on
this appeal are whether the trial court erred in
ruling upon the admissibility of evidence and
whether the evidence is sufficient to support the
verdict.
The body of the victim, Mrs. Helen Roberts, was
found near a road in Sutter County on the
afternoon of November 15, 1954. Dr. Paxton, a
pathologist, examined the body and performed
an autopsy. He testified that Mrs. Roberts was an
obese woman about 50 years of age, that her
death was caused by a gunshot wound, and that
the fatal bullet, which he removed from the body,
had entered below the left armpit and had
traveled across the thorax, with a slight deviation
backward and upward, penetrating the heart,
right lung, and soft tissue beneath the right
shoulder and striking the humerus of the right
arm three inches below the shoulder joint.
Defendant did not testify at the trial, and there is
no substantial conflict in the evidence. In August
of 1954 Mrs. Roberts abandoned her husband
and began living with defendant in various motels
under fictitious names. Late in the afternoon of
November 14, defendant and Mrs. Roberts drove
away in a station wagon from a Vallejo motel
where they were then staying. About 6:30 p.m.
they stopped in front of a grocery store which
Mrs. Roberts entered. Later defendant got out of
the car, and a young man named Shelton made a
remark about the damp weather. Defendant drew
an automatic pistol from his belt, pointed it at the
sky, asked whether he should do something
about the weather, replaced the gun under his
coat and went into the store. Shelton testified
that the gun looked like the weapon identified at
the trial as the one which fired the shot killing
Mrs. Roberts. When defendant and Mrs. Roberts
left the store, they drove across the street to a
service station, where, before leaving together,
they talked to the attendant for approximately
20 [47 Cal. 2d 102] minutes. In the course of
this conversation, Mrs. Roberts was in good
spirits, and defendant was solemn.
For several months prior to November 14,
defendant intermittently occupied a room which
he rented in Vallejo at the home of a Mrs. Hill, an
elderly widow who had agreed to marry him.
Early in the afternoon of that day, he came to
visit Mrs. Hill and left after about two hours. He
returned at 9 p.m., and, when Mrs. Hill opened
the door, he exclaimed, "Helen shot herself,
Helen shot herself." He told Mrs. Hill that Mrs.
Roberts, while in the station wagon, took a gun
out of the glove compartment, said, "I ought to
shoot you and the dog and myself," pointed the
gun at herself and fired the fatal shot.
Mrs. Hill and defendant went out to the station
wagon in front of the house, and the body of Mrs.
Roberts, which was still warm, was on the front
seat. They drove to a point in Sutter County,
where defendant left the body in high grass
beside the road. Upon returning to Vallejo, they
went to the motel where defendant and Mrs.
Roberts had been staying. Defendant awakened
the motel owner in order to obtain a key, stating
that "mama" had gone to the movies with
another man and that, if she came back and
wanted to reach defendant, he would be at Mrs.
Hill's residence. After collecting his belongings,
he drove with Mrs. Hill to her home.
Defendant cautioned Mrs. Hill not to reveal their
activities of that evening and instructed her to
say that he had left Mrs. Roberts at a theater,
arranging to return for her at 9 p.m., but that,
when he and Mrs. Hill went to the theater at that
hour, Mrs. Roberts entered a car with another
man and drove away. He gave Mrs. Hill a gun,
requesting that she dispose of it, and she
wrapped it up and asked one of her boarders to
drop it in the bay. The boarder became
suspicious and turned the gun over to the police.
When questioned by the authorities, defendant
stated that he and Mrs. Roberts left their motel in
Vallejo on the afternoon of November 14, that,
after stopping at a grocery store, he took her to a
theater and that, when he returned for her, he
saw her drive away with another man.
The gun which defendant gave Mrs. Hill after the
death of Mrs. Roberts was introduced in evidence
and was identified by a ballistics expert as the
one which fired the bullet removed from Mrs.
Roberts' body. Mrs. Hill testified that the gun
looked like one which belonged to her. She said
that about six weeks before the death of Mrs.
Roberts she had given [47 Cal. 2d 103] her gun
to defendant to be cleaned and that he returned
it in about a week. She placed it on the dresser in
her bedroom, and later she noticed that it had
disappeared. She could not say on what day she
first became aware that it was missing but stated
that it disappeared sometime during the week
preceding Mrs. Roberts' death.
The first question is whether the trial court erred
in ruling on the admissibility of evidence. Upon
being called as a witness, Dr. Paxton, who
performed the autopsy, testified that he
specialized in pathology and autopsy work to
determine causes of death. Defendant stipulated
to the qualifications of the witness. When the
doctor was asked whether, in his opinion, the
wound could have been self-inflicted, defendant
objected on the grounds that no foundation had
been laid as to the qualifications of the witness to
form such an opinion and that the matter was not
a proper subject for expert testimony. The
objection was overruled, and the doctor testified
that "This would be a very unusual pattern for a
self-inflicted wound." In elaborating, he referred
to the location of the wound, the course of the
bullet and the obesity of the victim, and he
stated that it would be difficult for a person,
whether right-handed or left-handed, to hold the
muzzle of a gun against himself in the position
necessary to produce such a wound. He testified
that his opinion was based on his training and
experience, as well as the condition of the body,
that he had examined suicide victims who had
died of gunshot wounds and that he had never
seen a self-inflicted wound "in this position."
Many cases have set forth the general principles
to be applied in considering the admissibility of
expert opinion on the question whether a wound
was self-inflicted. [1] Although courts have not
always used the same language, the decisive
consideration in determining the admissibility of
expert opinion evidence is whether the subject of
inquiry is one of such common knowledge that
men of ordinary education could reach a
conclusion as intelligently as the witness or
whether, on the other hand, the matter is
sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.
(See George v. Bekins Van & Storage Co., 33 Cal.
2d 834, 844 [205 P.2d 1037]; Vallejo etc. R. R.
Co. v. Reed Orchard Co., 169 Cal. 545, 570-571
[147 P. 238]; Howland v. Oakland C. St. Ry. Co.,
110 Cal. 513, 522 [42 P. 983]; Wells Truckways,
Ltd. v. Cebrian, 122 Cal.[47 Cal. 2d
104] App.2d 666, 677-678 [265 P.2d 557]; Eger
v. May Department Stores, 120 Cal. App. 2d 554,
558 [261 P.2d 281]; Manney v. Housing
Authority, 79 Cal. App. 2d 453, 460 [180 P.2d
69]; Code Civ. Proc., § 1870, subd. 9; fn. * 7
Wigmore on Evidence (3d ed. 1940), § 1923, pp.
21, 22.)
In two California cases a doctor's opinion that a
fatal wound could not have been self-inflicted
was relied upon in holding that there was
sufficient evidence to establish the corpus delicti.
(People v. Black, 103 Cal. App. 2d 69, 75 [229
P.2d 61]; People v. Coker, 78 Cal. App. 151, 161
[248 P. 542].) In a number of other jurisdictions
it has been held that medical opinion as to
whether a wound could have been self-inflicted
was admissible. (State v. Lee, 65 Conn. 265 [30
A. 1110, 1113-1114, 48 Am.St.Rep. 202, 27
L.R.A. 498]; Everett v. State, 62 Ga. 65, 71;
State v. Schneck, 85 Kan. 334 [116 P. 823,
824]; State v. Sharp, 145 La. 891 [83 So. 181,
182]; State v. Knight, 43 Me. 11, 131;
Commonwealth v. Spiropoulos, 208 Mass. 71 [94
N.E. 451, 452]; Miera v. Territory, 13 N.M. 192
[81 P. 586, 588-589]; People v. Wilson, 109 N.Y.
345 [16 N.E. 540, 543]; Commonwealth v.
Puglise, 276 Pa. 235 [120 A. 401, 402].) The
reasoning underlying these decisions is that the
subject of self-inflicted wounds is not one of such
common experience that laymen may not be
assisted by the opinion of a doctor, who has
special knowledge regarding anatomy and
injuries to the human body.
We are aware that cases in some jurisdictions
have held that testimony of this type is not
admissible. (Treat v. Merchants' Life Assn., 198
Ill. 431 [64 N.E. 992, 994]; Knights Templars' &
Masons' Life Indem. Co. v. Crayton, 110 Ill. App.
648, 662-663; Aetna Life Ins. Co. v. Kaiser, 115
Ky. 539 [74 S.W. 203, 205] [overruled on other
grounds in Inter-Southern Life Ins. Co. v.
Hinkle's Admx., 226 Ky. 724 [11 S.W.2d 913,
914]]; State v. Carr, 196 N.C. 129 [144 S.E.
698, 699-700]; State v. Gibson, 69 N.D. 70 [284
N.W. 209, 217-218]; State v. Bradley, 34 S.C.
136 [13 S.E. 315, 316-317]; State v. McCravy,
133 Tenn. 358 [181 S.W. 165, 168]; Maynard v.
State, 154 Tex.Crim. 521 [229 S.W.2d 65, 67];
Metropolitan Life Ins. Co. v. Wagner, 50
Tex.Civ.App. 233 [47 Cal. 2d 105] [109 S.W.
1120, 1123-1124]; see People v. Curtright, 258
Ill. 430 [101 N.E. 551, 554].) [2] In our opinion,
however, they do not represent the better view
with respect to whether the trier of fact would
ordinarily be in a position to determine, as
intelligently as a doctor, whether a wound was
self-inflicted. [3] Moreover, some of these cases
rest, at least in part, upon the ground that the
opinion of the doctor would go to an ultimate
issue of fact to be resolved by the jury, whereas
in this state we have followed the modern
tendency and have refused to hold that expert
opinion is inadmissible merely because it
coincides with an ultimate issue of fact. (People
v. Wilson, 25 Cal. 2d 341, 349 [153 P.2d 720];
People v. King, 104 Cal. App. 2d 298, 304 [231
P.2d 156]; see People v. Martinez, 38 Cal. 2d
556, 564 [241 P.2d 224]; Wells Truckways, Ltd.
v. Cebrian, 122 Cal. App. 2d 666, 678 [265 P.2d
557]; 7 Wigmore on Evidence (3d ed. 1940), §§
1920, 1921, pp. 17, 18; 2 Morgan, Basic
Problems of Evidence, p. 194 et seq.; 2 Wharton,
Criminal Evidence (11th ed.), § 957, p. 1682.)
A conclusion that the testimony complained of
was inadmissible would amount to a holding that
the jurors, although laymen whose experience
with gunshot wounds and suicide was likely to be
limited or nonexistent, could not have derived
assistance from the opinion of a doctor who was
an expert on those matters and had personally
examined the body and performed the autopsy
as a specialist on causes of death. [4] Where
expert opinion evidence is offered, much must be
left to the discretion of the trial court (People v.
Haeussler, 41 Cal. 2d 252, 260 [260 P.2d 8]),
and we are satisfied that there was no abuse of
discretion in permitting Dr. Paxton to express his
opinion. [5] The jurors, of course, were not
bound by the opinion of the witness but were free
to determine the weight to which it was entitled
and to disregard it if they found it to be
unreasonable, and they were so instructed. (Pen.
Code, § 1127b fn. *.)
The early cases of People v. Farley (1899), 124
Cal. 594, 595 [57 P. 571], People v. Milner
(1898), 122 Cal. 171, 181 [47 Cal. 2d 106] [54
P. 833], People v. Smith (1892), 93 Cal. 445,
447 [29 P. 64], and People v. Westlake (1882),
62 Cal. 303, 309, are readily distinguishable.
They did not involve the question of suicide but
held that a doctor may not give an opinion, based
on the course of a bullet, as to the posture of a
person shot by another or as to the relative
positions of the victim and the one who fired the
shot. As pointed out in the Milner case, it is
impossible to determine those matters from the
course of the bullet alone, since a number of
variables might be involved, such as whether the
victim was leaning forward or standing erect.
(See also People v. Salaz, 66 Cal. App. 173, 183
[225 P. 777].)
The next question is whether the evidence is
sufficient to support the verdict of first degree
murder. Section 187 of the Penal Code defines
murder as the unlawful killing of a human being
with malice aforethought, and section 189 of that
code provides, in part, that all murder
perpetrated by any kind of willful, deliberate and
premeditated killing is murder of the first degree.
[6] The record clearly warrants a conclusion that
defendant killed Mrs. Roberts, and there is
nothing showing provocation or justification for
the homicide. Under such circumstances, malice
will be implied. (Pen. Code, § 188.)
[7] Deliberation and premeditation may be
inferred from proof of circumstances which will
furnish a reasonable foundation for such an
inference, and, where the evidence is not in law
insufficient, the matter is exclusively within the
province of the jury for determination. (People v.
Gulbrandsen, 35 Cal. 2d 514, 519-520 [218 P.2d
977].) [8] There was evidence that defendant
had secretly taken Mrs. Hill's gun from her
dresser during the week preceding Mrs. Roberts'
death, that he was carrying the weapon on his
person about 6:30 p.m. on the evening she died
and that he used it to kill Mrs. Roberts sometime
before 9 p.m. The jury could infer that defendant
had taken the gun for the purpose of killing her.
[9] Moreover, the evidence was sufficient to show
that defendant planned to implicate Mrs. Hill so
as to secure her assistance in concealing his guilt
and that he had formed [47 Cal. 2d 107] this
plan before committing the crime. It was
established not only that he took her gun and
used it in the killing but also that he brought the
body to Mrs. Hill's home, represented that Mrs.
Roberts had shot herself and asked Mrs. Hill to
accompany him on the trip to Sutter County
where he left the body in high grass beside the
road. Defendant also requested Mrs. Hill to
dispose of the gun used in the killing and
instructed her not to disclose their activities but
to give such an account of events as would
substantiate his subsequent claim that he had
last seen Mrs. Roberts driving away from a
theater with another man. Mrs. Roberts had been
seen alive two hours before defendant brought
her body, which was still warm, to Mrs. Hill's
home. The taking of Mrs. Hill's gun during the
preceding week and the speed with which
defendant acted following the killing would
support the conclusion that his plan to involve
Mrs. Hill had been conceived before the crime
was committed.
[10] There was also evidence that, while
defendant was living with Mrs. Roberts, who was
in financial distress, he planned to marry Mrs.
Hill, who had a substantial bank account and
owned a home and other property. During the
period that defendant was living with Mrs.
Roberts he borrowed money from Mrs. Hill, and
on the day of the killing he represented to the
owner of the motel where he was staying that
property belonging to Mrs. Hill was owned by him
and expressed a desire to ascertain the feasibility
of locating a service station on it. The jury might
have determined that defendant had become
dissatisfied with the relationship existing between
him and Mrs. Roberts and that he planned to kill
her in order to remove her as an obstacle to his
plan of obtaining Mrs. Hill's property through
marriage. A showing of motive indicating that the
killing was planned is evidence tending to support
a finding of deliberation and premeditation. For
example, in People v. Gulbrandsen, supra, 35
Cal. 2d 514, where we held that deliberation and
premeditation were sufficiently shown, we relied,
in part, on evidence that the defendant's motive
in killing the two victims was to get them out of
the way so that he could force himself upon a
woman. (See also People v. Werner, 111 Cal.
App. 2d 264, 272 [244 P.2d 476].)
The evidence is sufficient to support the jury's
finding that defendant was possessed of a willful,
deliberate and premeditated intent to kill. [47
Cal. 2d 108]
[11] There is no merit in defendant's contention
that the court erred in refusing to instruct the
jury that Mrs. Hill was an accomplice as a matter
of law. The question of complicity was one of
fact, and its determination was left to the jury
under instructions which fully and correctly set
forth the rules of law to be applied.
The judgment and the order denying a new trial
are affirmed.
Shenk, J., Traynor, J., Spence, J., and McComb,
J., concurred.
SCHAUER, J.,
Concurring and Dissenting.
I agree that there was ample properly admitted
evidence to support the finding that defendant
murdered Mrs. Roberts wilfully, deliberately, and
with premeditated intent to kill, and I find no
miscarriage of justice. However, I disagree with
the holding that in the circumstances of this case
Dr. Paxton was properly allowed to testify, in
answer to the question, "assuming that the bullet
you took from the body ... had come from a .32
caliber Colt automatic pistol, do you have an
opinion as to whether or not that pistol could
have been held by the deceased at the time the
trigger was pulled and the gun was discharged?"
that "I have an opinion ... This would be a very
unusual pattern for a self-inflicted wound." It
seems obvious to me that the pertinent question
here is not whether it was usual or unusual for
persons who kill themselves to do so by shooting
themselves in the manner in which deceased was
shot, but whether this particular woman inflicted
this particular wound upon herself. It appears to
me that the doctor's testimony as to the
frequencies of occurrences of this kind of wound
and of other kinds of wounds among other
persons committing suicide is irrelevant to any
issue here.
The doctor (whose qualifications as a pathologist
are not disputed) described the course taken by
the bullet, indicated it on a photograph of
deceased and sketched it on a blackboard. The
bullet entered the body "anteriorally and laterally
in the left chest" between the third and fourth
ribs, traveled up through the heart and upper
lobe of the right lung, and struck and shattered
the humerus of the right arm about three inches
below the shoulder joint.
Before the jury the prosecuting attorney asked,
in various forms, if the doctor had an opinion as
to whether the wound could have been self-
inflicted. This might have been a proper [47 Cal.
2d 109] approach if a sufficient factual
foundation had been laid; but such foundation
had not been established, and, as subsequently
appeared, did not exist. Defense counsel
objected, and said, "I feel this is going into a
matter that is for the jury to decide, and not
called upon for any expert witness' testimony. I
don't believe there has been any foundation or
ground showing this doctor is an expert, whether
a wound can be self-inflicted or whether inflicted
by some other agency." (Italics added.) This
objection raised, although not in a particularly
apt manner, the question whether a sufficient
factual foundation had been laid upon which this
doctor or any doctor could be qualified to give an
opinion that this woman could or could not have
shot herself in the fashion in which she was shot.
The prosecuting attorney said, "We feel the
doctor is qualified, having seen this body; he has
noticed the length of the arms of the deceased
person and ... has already testified to her obesity
and so forth and so on; we feel he is in a position
to tell us whether he thinks that person could
have discharged a pistol into her own person as
to cause this wound." But as hereinafter shown
the doctor himself established the facts showing
want of foundation for formation of an opinion
entitled to be received as "expert opinion" on the
pertinent issue.
There was further argument on the question
outside the presence of the jury, during which
defense counsel correctly pointed out that "as far
as the testimony as to the length of the arm, or
anything like that, those facts are not yet in
evidence." The trial court commented, "if the
question of death of this woman depends solely
... [on] the expert or opinion testimony of Dr.
Paxton, they would be on very weak ground.
However, I am making no ruling on that at this
time. I am now overruling the objection,
however. ... The value will go to the jury, its
weight. You of course will have full opportunity to
cross-examine Dr. Paxton in that respect." This
ruling, in my opinion, was error because the
prosecution had not adduced evidence upon
which the doctor could be qualified to either form
or express an opinion that the wound in this case
could or could not have been self- inflicted.
Before the jury the doctor then testified on direct
examination that "This would be a very unusual
pattern for a self-inflicted wound"; that he did
not know whether deceased was right-handed or
left-handed, but that (indicating upon himself
with the pistol which inflicted the wound) it would
be [47 Cal. 2d 110] difficult to inflict such a
wound upon himself with either hand. It appears
to me that in the absence of showing some
similarity or defined dissimilarity between the
doctor's and the decedent's pertinent capabilities,
the doctor's testimony concerning himself would
be immaterial. On cross- examination the doctor
testified that he had not measured the
deceased's arms. The basis of the doctor's
opinion that the wound was not self- inflicted was
then brought out: he had examined by autopsy
"perhaps twenty people" who died from gunshot
wounds and seen "numerable cases in the
emergency hospitals which I have worked in"; "I
can form an opinion from my past experiences in
examining the suicidal victims ... and I would say
that ninety percent of the suicidal victims I have
examined have shot themselves in the head ...
And a majority of those are in the right temple ...
The next most common site is through the mouth
... The next most common site is an attempt at
the heart ... and I have never seen one in this
position. ... The location in my opinion indicates
that this is not self-inflicted."
The basis of the doctor's opinion as expressed in
his testimony shows that there was not adequate
factual foundation for, and that he was not
qualified to express, the opinion above quoted. It
was of no concern to the jury, and not helpful to
them, to know that "ninety percent of the suicidal
victims" examined by Dr. Paxton had "shot
themselves in the head" rather than shot
themselves in certain other places or, it may be
interpolated, had jumped off bridges or hit
themselves over the head with axes. The case
here concerned the woman who did die from the
wound in the chest described above. The
question for the jury was whether that particular
wound was inflicted by decedent or by another
person. Since the prosecution had not, before the
doctor gave his opinion, shown a factual base
upon which the doctor as a pathologist could
intelligently and reasonably form and support the
opinion that the wound here involved was not
self-inflicted, fn. 1 that opinion should not have
been received in evidence. The error of receiving
it became more apparent when on his cross-
examination it developed that he had no basis for
an opinion that this particular woman could not
have shot herself as she was shot. However, as
stated above, it does not appear to me, [47 Cal.
2d 111] from an examination of the entire
record, that the error resulted in a miscarriage of
justice.
Accordingly I concur in the judgment and, FN *. Section 1870 of the Code of Civil Procedure
generally, in the other propositions of law provides:
discussed in the opinion of the Chief Justice.
"In conformity with the preceding provisions,
CARTER, J., evidence may be given upon a trial of the
following facts: ...
Concurring and Dissenting.
"9. The opinion of a witness respecting the
In view of the record before us in this case, I am identity or handwriting of a person, when he has
of the opinion that it was error to permit Dr. knowledge of the person or handwriting; his
Paxton to express an opinion that the wound opinion on a question of science, art, or trade,
inflicted upon the victim of the homicide "would when he is skilled therein; ..."
be a very unusual pattern for a self- inflicted
wound." I think it is clear that, even conceding FN *. Section 1127b of the Penal Code reads:
that the subject matter of the inquiry might be
within the realm of expert testimony, sufficient "When, in any criminal trial or proceeding, the
foundation was not laid for the opinion of an opinion of any expert witness is received in
expert on this subject. Ordinarily, expert evidence, the court shall instruct the jury
testimony is based upon a full and fair statement substantially as follows:
of all of the pertinent facts relating to the
problem on which the expert is called upon to "Duly qualified experts may give their opinions on
give his opinion. Here, vital and material facts questions in controversy at a trial. To assist the
were omitted from the statement and were not jury in deciding such questions, the jury may
within the knowledge of the expert. These facts consider the opinion with the reasons stated
relate to the length of the victim's arms and the therefor, if any, by the expert who gives the
character and quality of the clothing, if any, worn opinion. The jury is not bound to accept the
by the victim at the time the shot was fired. opinion of any expert as conclusive, but should
give to it the weight to which they shall find it to
A basic objection to expert opinion evidence in a be entitled. The jury may, however, disregard
case such as this is, that the expert is called any such opinion, if it shall be found by them to
upon to answer the exact question which is to be be unreasonable.
determined by the trier of fact, and therefore
invades its province. Obviously, if the wound "No further instruction on the subject of opinion
here was self-inflicted, the defendant did not fire evidence need be given."
the shot, and would therefore not be guilty of the
offense charged. If the wound were not self-
FN 1. The evidence contains no suggestion that
inflicted, its infliction could be traced directly to
the doctor was acquainted with the decedent in
defendant.
her lifetime and knew her character as
evidencing a propensity to commit an act such as
In my opinion the proper procedure in a case suicide in a conventional rather than unusual
such as this would be for the prosecution to manner.
develop all of the facts with respect to the
location of the point of entry of the bullet, its
course through the body of the victim and the
probable distance from the body of the muzzle of
the gun at the time it was discharged together
with physical facts relative to the size of the
victim, clothing worn, length of her arms and
ability to move her muscles, and leave the
question as to who inflicted the wound for the
determination of the trier of fact. It seems to me
that upon the presentation of such a factual
situation, anyone familiar with the use of
firearms is as capable of arriving at an opinion as
to whether or not the wound was self-inflicted as
a so-called expert in this field. [47 Cal. 2d 112]

Notwithstanding my opinion that it was error to

admit the testimony of Dr. Paxton on this
subject, I am satisfied, after a review of the
record, that defendant suffered no infringement
of any of his substantial rights, and was not
prejudiced thereby, and that such error has not
resulted in a miscarriage of justice. It is therefore
my duty, by virtue of the provisions of section 4
1/2 of article VI of the Constitution of California,
to concur in the affirmance of the judgment, and
that is my conclusion.