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RA 2382 registration shall not be required of the following

persons:
ARTICLE III
(a) Physicians and surgeons from other countries
THE BOARD OF MEDICAL EXAMINERS; called in consultation only and exclusively in
REGISTRATION OF PHYSICIANS specific and definite cases, or those attached to
international bodies or organization assigned to
Section 8. Prerequisite to the practice of perform certain definite work in the Philippines
medicine. No person shall engage in the practice provided they shall limit their practice to the
of medicine in the Philippines unless he is at least specific work assigned to them and provided
twenty-one years of age, has satisfactorily further they shall secure a previous authorization
passed the corresponding Board Examination, from the Board of Medical Examiners.
and is a holder of a valid Certificate of
Registration duly issued to him by the Board of (b) Commissioned medical officers of the United
Medical Examiners. States armed forces stationed in the Philippines
while rendering service as such only for the
Section 10. Acts constituting practice of members of the said armed forces and within the
medicine. A person shall be considered as limit of their own respective territorial
engaged in the practice of medicine (a) who jurisdiction.
shall, for compensation, fee, salary or reward in
any form, paid to him directly or through (c) Foreign physicians employed as exchange
another, or even without the same, physical professors in special branches of medicine or
examine any person, and diagnose, treat, surgery whose service may in the discretion of
operate or prescribe any remedy for any human the Board of Medical Education, be necessary.
disease, injury, deformity, physical, mental or
physical condition or any ailment, real or (d) Medical students who have completed the
imaginary, regardless of the nature of the first four years of medical course, graduates of
remedy or treatment administered, prescribed or medicine and registered nurses who may be
recommended; or (b) who shall, by means of given limited and special authorization by the
signs, cards, advertisements, written or printed Secretary of Health to render medical services
matter, or through the radio, television or any during epidemics or national emergencies
other means of communication, either offer or whenever the services of duly registered
undertake by any means or method to diagnose, physicians are not available. Such authorization
treat, operate or prescribe any remedy for any shall automatically cease when the epidemic or
human disease, injury, deformity, physical, national emergency is declared terminated by the
mental or physical condition; or (c) who shall use Secretary of Health.
the title M.D. after his name.
REPUBLIC ACT No. 4224
Section 11. Exemptions. The preceding section
shall not be construed to affect (a) any medical "Sec. 10. Acts constituting practice of medicine. A
student duly enrolled in an approved medical person shall be considered as engaged in the
college or school under training, serving without practice of medicine (a) who shall, for
any professional fee in any government or compensation, fee, salary or reward in any form
private hospital, provided that he renders such paid to him directly or through another, or even
service under the direct supervision and control without the same, physically examine any
of a registered physician; (b) any legally person, and diagnose, treat, operate or prescribe
registered dentist engaged exclusively in the any remedy for human disease, injury, deformity,
practice of dentistry; (c) any duly registered physical, mental, psychical condition or any
masseur or physiotherapist, provided that he ailment, real or imaginary, regardless of the
applies massage or other physical means upon nature of the remedy or treatment administered,
written order or prescription of a duly registered prescribed or recommended; or (b) who shall by
physician, or provided that such application of means of signs, cards, advertisements, written or
massage or physical means shall be limited to printed matter, or through the radio, television or
physical or muscular development; (d) any duly any other means of communication, either offer
registered optometrist who mechanically fits or or undertake by any means or method to
sells lenses, artificial eyes, limbs or other similar diagnose, treat, operate or prescribe any remedy
appliances or who is engaged in the mechanical for any human disease, injury, deformity,
examination of eyes for the purpose of physical, mental or psychical condition; or (c)
constructing or adjusting eye glasses, spectacles who shall falsely use the title of M.D. after his
and lenses; (e) any person who renders any name.
service gratuitously in cases of emergency, or in
places where the services of a duly registered "Sec. 11. Exemptions. The preceding section shall
physician, nurse or midwife are not available; (f) not be construed to affect (a) any medical
any person who administers or recommends any student duly enrolled in an approved medical
household remedy as per classification of existing college or school, or graduate under training,
Pharmacy Laws; and (g) any psychologist or serving without any professional fee in any
mental hygienist in the performance of his duties, government or private hospital, provided that he
provided such performance is done in conjunction render such service under the direct supervision
with a duly registered physician. and control of a registered physician; (b) any
legally registered dentist engaged exclusively in
Section 12. Limited practice without any
the practice of dentistry; (c) any duly registered
certificate of registration. Certificates of
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 that she did the same kind of work as Dr. Frank
Handzik and invited her into the apartment; that
410 Ill. 295 (1951) defendant then asked her where she had her pain
and the witness told her it was between her
102 N.E.2d 340 shoulders, *299 and defendant told her she had
arthritis; that defendant then asked her if she
THE PEOPLE OF THE STATE OF ILLINOIS, believed in God and when witness replied that
Defendant in Error, v. E.O. HANDZIK, Plaintiff in she did defendant requested a donation of $4 for
Error. her church and told witness that she would give
her a treatment, that she too had had arthritis
No. 31906. and had cured herself. The witness then
described the treatment given to her which
Supreme Court of Illinois. consisted of rapid inhaling, exhaling, and drinking
two glasses of water, one described as "holy"
water and the other as "atomic" water; that
Opinion filed November 27, 1951.
defendant also went through the rapid breathing
process and stated that the purpose was to make
*296 *297 FREDERICK J. BERTRAM, of Chicago, one hot and make contact with God easier; that
for plaintiff in error. defendant placed her hands on the witness and
prayed; that defendant told the witness that she
IVAN A. ELLIOTT, Attorney General, of also had machines, the "Estemeter" and "Vita
Springfield, and JOHN S. BOYLE, State's Ray" machines, and if witness did not get relief
Attorney, of Chicago, (JOHN T. GALLAGHER, from the treatment that she would apply "hot
RUDOLPH L. JANEGA, ARTHUR F. MANNING, and wires." The witness also testified that defendant
WILLIAM J. McGAH, JR., all of Chicago, of gave her a printed card bearing the names of Dr.
counsel,) for the People. Esther O. Handzik and Dr. Frank A. Handzik,
underneath which names was printed "Christian
Judgment affirmed. Psychophysicians," and showing the address,
phone number and office hours. This card was
*298 Mr. JUSTICE MAXWELL, delivered the introduced in evidence. The defendant testified
opinion of the court: that she believed in, had studied and practiced
divine healing through prayer as a minister of her
Plaintiff in error, E.O. Handzik, also known as church. She denied charging a fee but admitted
Esther O. Hankzik, was tried and convicted of a that she accepted a donation for her church and
violation of the Medical Practice Act upon stated that this donation was usually divided, 10
information filed in the county court of Cook per cent to the church and 90 per cent to her.
County. She comes here directly from that court She denied making any physical examination or
by writ of error to review the verdict of the jury diagnosis. She denied giving the witness the card
and the sentence to pay a fine of $500. Direct but stated that she knew they were in the house.
review lies to this court because she directly She stated that she was employed as a tailor to
challenged the constitutionality of sections 24, earn her living and did not depend upon any
36, and 37 of this act in the lower court and has income from healing treatments for that purpose.
properly preserved those questions for review
here. The jury found her guilty under counts 3, 4, and
5 of the information and made no finding under
It appears from the evidence that plaintiff in counts 1 and 2. Count 3 charged that defendant,
error, who will be hereinafter referred to as on November 15, 1949, in the city of Chicago,
defendant, was a woman about 60 years old at County of Cook, "not then and *300 there
the time of the hearing, was a native of Sweden, possessing in full force and virtue a valid and
had been in this country about 27 years and was existing license issued by the authority of the
a citizen. She resided in her second-floor State of Illinois to practice the treatment of
apartment in the city of Chicago with her human ailments in any manner, * * * did then
husband, Frank Handzik. She claimed to be a and there unlawfully suggest, recommend and
faith healer or healing minister ordained by the prescribe the loud and rapid inhaling and
Central Baptist Church of Chicago and was a exhaling and the drinking of water for the relief
member of a sect which believed in and practiced and cure of the supposed ailment of Frances
divine or faith healing. The prosecuting witness, Dickerson, also known as Bertha Baker, with the
Mrs. Frances Dickerson, was an investigator for intention of receiving therefor a fee in the sum of
the Department of Registration and Education of four ($4.00) dollars." Count 4 alleged that the
the State of Illinois. She testified that on defendant, on November 15, 1949, not
November 15, 1949, she went to the defendant's possessing a license of the State of Illinois to
apartment to investigate a complaint which the practice the treatment of human ailments in any
Department had received about one Dr. Frank manner, did then and there "within the said
Handzik; that defendant answered the door, County of Cook, unlawfully attach the title
witness gave her the alias of Bertha Baker, and Doctor, Physician, Surgeon, M.D. or some other
asked to see Dr. Frank Handzik; that defendant words or abbreviation to his name indicative that
advised her that Dr. Frank Handzik was not in he was engaged in the treatment of human
and asked her if she wanted a treatment; that ailments as a business, to wit: Did then and
she replied in the affirmative and defendant then there unlawfully attach the title `Doctor' to her
told the witness that she was Dr. E.O. Handzik, name, indicative that she was engaged in the
treatment of human ailments as a business, by Section 37 provides that this act shall not apply
informing patient that she was `Dr. E.O. to certain named classes of persons, including
Handzik,' all in violation of Section 24 of an Act," "persons treating *302 human ailments by prayer
etc. Count 5 alleged that the defendant, on or spiritual means as an exercise or enjoyment of
November 15, 1949, not possessing a license of religious freedom."
the State of Illinois to practice the treatment of
human ailments in any manner, did then and Defendant's contention that section 24 is invalid
there "within the said County of Cook unlawfully because the general language used therein is
maintain an office for examination or treatment repugant to section 37 is untenable. It is an
of persons afflicted * * * with any ailment, to elementary rule of statutory construction that all
wit: Did then and there unlawfully maintain an the parts of an act relating to the same subject
office for the examination and treatment of should be considered together and not each
persons afflicted and supposed to be afflicted alone, so that the purpose and intent of the
with any ailments, at 2573 Lyndale Avenue, whole act can be ascertained and given effect as
Chicago, Illinois, all in violation of Section 24 of consistent provisions to accomplish the purpose
an Act," etc. intended. The provisions of section 37 merely
constitute exceptions to the general provisions of
Defendant's written motions to quash the section 24, and when the whole act is read
information, for a directed verdict, in arrest of together there is no inconsistency or repugnancy.
judgment and for a new trial were all overruled Mason v. Finch, 2 Scam, 223; Burke v. Monroe
by the court. County, 77 Ill. 610; Thompson v. Bulson, 78 Ill.
277.
Defendant first contends that section 24 of the
Medical Practice Act (Ill. Rev. Stat. 1949, chap. There is no merit in the contention that the
91, par. 16i,) is *301 unconstitutional because subject matter of section 24 is not embraced or
(1) the general language used in section 24 is expressed in the title of the act. The object of the
restricted in its operation by the exceptions made provisions of section 13 of article IV of the
by section 37 of the same act and is therefore constitution, requiring the subject to be
void, and also because section 24 provides for expressed in the title of all acts of the General
punishment for "any" person, which term Assembly, is to give information as to the subject
includes those exempted by section 37; (2) the with which the act deals, and to prevent joining
subject matter of section 24 is not embraced or in one act incongruous or unrelated matters.
expressed in the title of the act; (3) the penalties (People v. McBride, 234 Ill. 146; People v.
authorized by section 24 inure to the Department Williams, 309 Ill. 492; People v. Jiras, 340 Ill.
(section 36) which is in effect an appropriation or 208.) The title should express in general terms
diversion of public funds in violation of sections the purpose of the act, and any provisions
16 to 20, article IV of the Illinois constitution; (4) germane to that purpose may be inserted so long
the provisions of section 24, providing as they are not inconsistent with or foreign to the
punishment for any person using the titles general subject. The title of an act is not required
"Doctor" and "Physician," violate the due process to be an index of all its provisions. (People v.
clause and constitute an abridgement of the Sisk, 297 Ill. 314.) Where there is any doubt, it
privileges of citizens of the United States; (5) should be resolved in favor of the validity of the
section 24 violates and infringes upon religious act. (Ritchie v. People, 155 Ill. 98; Fuller v.
freedom. People, 92 Ill. 182.) The title of the Medical
Practice Act is "An Act to revise the law in
Section 24 of this act provides, in substance, that relation to the practice of the treatment of
if any person shall hold himself out to the public human ailments for the better protection of the
as being engaged in the diagnosis or treatment of public health and *303 to prescribe penalties for
human ailments; or shall suggest, recommend or the violation hereof." Section 24 provides that
prescribe any form of treatment with the the doing of certain specified acts for the purpose
intention of receiving any fee or gift, or any of treating human ailments, without a valid
compensation whatsoever; or shall profess to license, constitutes a misdemeanor, and provides
heal any ailment or supposed ailment of another; penalties upon conviction thereof. The purpose
or shall maintain an office for examination or and object of the act, as set out in the title, is to
treatment of any persons afflicted with any regulate the practice of treating human ailments.
ailment; or shall attach the title Doctor, The power to license is a common and
Physician, Surgeon, M.D. or any other word or established method of regulating. The specific
abbreviation to his name, indicative that he is acts prohibited by section 24 are all methods of
engaged in the treatment of human ailments as a treating human ailments. Prohibiting certain
business; and shall not then possess in full force methods of treatment without a license is clearly
and virtue a valid license issued by authority of not inconsistent with or foreign to regulating the
this State, shall be guilty of a misdemeanor, and practice of the treatment of human ailments, but
upon conviction shall be punished by a fine or is germane to, and in furtherance of, the
imprisonment in the county jail, or by both fine purposes of the act for the better protection of
and imprisonment. the public health.

Section 36 provides that all such fines shall inure Defendant's contention that the act is invalid
to the Department. 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 "indicative that he is engaged in the treatment of
and benefit, in violation of sections 16 to 20 of human ailments as a business" is reasonably
article IV of the constitution, cannot be necessary and appropriate to accomplish the
sustained. We are unable to see how sections 16, legitimate objects and purposes of the Medical
17, 18 and 19 of article IV could be interpreted to Practice Act and within the police power of the
apply in any manner to a statute making State. The validity of the Medical Practice Act of
disposition of fines. Sections 16, 17, and 18 1923 has been repeatedly affirmed by this court
apply only to appropriations made by the General and we have found that section 24 does not
Assembly out of the State treasury and section violate the due process clause of the constitution.
19 deals with extra pay for persons or on People v. DeYoung, 369 Ill. 341, and cases cited.
contracts. Defendant's contention would have to
be based on the provisions of section 20 of this Defendant's contention that section 24 violates
article, which provides that the State shall never and infringes upon religious freedom is likewise
pay, assume, or become responsible for the untenable. As heretofore pointed out, section 24
debts or liabilities of, or in any manner give, loan must be read in conjunction with section 37, and
or extend its credit to or in aid of any public or that section specifically exempts "persons
other corporation, association or individual. In treating human ailments by prayer or spiritual
People v. Heise, 257 Ill. 443, the defendant means as an exercise or enjoyment of religious
challenged the constitutionality of a statute which freedom."
provided that the court which convicted a
defendant of wife and child abandonment could Defendant contends that counts 3, 4, and 5 of
order the fine paid, in whole or *304 in part, to the information were legally insufficient to charge
the wife or guardian of the child. The defendant a crime or offense against the State of Illinois,
there contended that this statute violated section were insufficient to inform her of the nature and
2 of the schedule and sections 1, 16, 17, 20 and cause of the accusation, and failed to negative
22 of article IV. We there held, as to sections 16 that she was exempt from the act, and that
and 17, that they applied only to appropriations therefore the trial court erred in overruling her
from the State treasury, and that it was not motions to quash the information and in arrest of
intended that section 20 of article IV should apply judgment. The three counts all charged
in any manner to the disposition to be made of defendant with the crimes in the language of the
fines and penalties for the violation of our statute and then, under a videlicet, with specific
criminal statutes. The General Assembly has the acts constituting violations of the act. Section 24
power to impose penalties and the power to prescribes the precise acts which constitute
dispose of them, and section 36 of the Medical violations, and the information is predicated upon
Practice Act does not violate any of the these precise acts. Both the statute and the
constitutional provisions relied on by defendant. information are clear and unambiguous and
informed the defendant of the exact nature of the
The defendant's contention that section 24 offense. Informations in similar language have
provides punishment for any person using the been upheld in People v. Shaver, 367 Ill. 339;
titles "Doctor" and "Physician" without a valid People v. Paderewski, 373 Ill. 197; People v.
license ignores the plain language of the statute. Moe, 381 Ill. 235; People v. Rongetti, 395 Ill.
Not every use of the titles is punishable, but only 580; People v. DeYoung, 378 Ill. 256; *306 and
the use of the titles in an unlawful manner People v. Kabana, 388 Ill. 198. Failure to
"indicative that he is engaged in the treatment of negative that defendant was one of the exempted
human ailments." (People v. DeYoung, 378 Ill. class does not make the information insufficient.
256.) The licensing and control of persons who We have frequently held that such exemptions or
represent to the public that they are trained and exceptions are not a part of the description of the
qualified to treat human ailments is a valid and offense and therefore need not be negatived in
essential exercise of the police power of the State the information. (People v. Boyden, 400 Ill. 409;
for the better protection of the public health. People ex rel. Courtney v. Prystalski, 358 Ill.
(People v. Walder, 317 Ill. 524.) Within 198; People v. Talbot, 322 Ill. 416; People v.
constitutional limits the General Assembly is the Green, 362 Ill. 171.) Such exemptions or
sole judge of the laws that shall be enacted for exceptions are matters of defense. People v.
the protection of the public health, and so long as Allen, 360 Ill. 36; People v. Saltis, 328 Ill. 494;
such laws do not invade inherent or constitutional Sokel v. People, 212 Ill. 238.
rights the determination of the General Assembly
is conclusive. The use of these titles is not an The defendant contends the court erred in
inherent or constitutional right in everyone and overruling the motion for a directed verdict on
the General Assembly may regulate their use in the grounds that all the evidence, both for the
the treating of human ailments. It is common State and the defendant, shows that this was
knowledge that these titles, in general use as purely a case of faith healing and was an exercise
applied to human ailments, have a connotation of her right of religious freedom. An examination
indicating special qualifications and training to of the instructions reveals that the jury was
diagnose and treat afflicted persons, and the adequately instructed in regard to defendant's
misuse of such titles could cause deceptions, claimed exemption, it heard the evidence and
frauds and practices dangerous to the public observed the witnesses, and by its verdict found
*305 health. Laws regulating the use of these the defendant was not one of the exempted
titles where health and even life itself are class. We cannot say that the evidence here, with
involved are not unreasonable or arbitrary. We the legitimate inferences deducible therefrom, is
think the prohibition of the use of such titles 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 license to practice medicine, had acted
arbitrarily, in clear contravention of the provision
BOARD OF MEDICINE, DR. RAUL FLORES of Section 20 of Republic Act (R.A.) No. 2382
(now DR. JOSE S. RAMIREZ), in his capacity (The Medical Act of 1959), depriving him of his
as Chairman of the Board, PROFESSIONAL legitimate right to practice his profession in the
REGULATION COMMISSION, through its Philippines to his great damage and prejudice.11
Chairman, HERMOGENES POBRE (now DR.
ALCESTIS M. GUIANG), Petitioners, On October 19, 2003, the RTC rendered its
vs. Decision finding that respondent had adequately
YASUYUKI OTA, Respondent. proved that the medical laws of Japan allow
foreigners like Filipinos to be granted license and
DECISION be admitted into the practice of medicine under
the principle of reciprocity; and that the Board
AUSTRIA-MARTINEZ, J.: had a ministerial duty of issuing the Certificate of
Registration and license to respondent, as it was
Before the Court is a Petition for Review shown that he had substantially complied with
on Certiorari assailing the Decision1 of the Court the requirements under the law.12 The RTC then
of Appeals (CA) in CA-G.R. SP No. 849452 dated ordered the Board to issue in favor of respondent
November 16, 2004 which affirmed the the corresponding Certificate of Registration
Decision3 of the Regional Trial Court (RTC), and/or license to practice medicine in the
Branch 22, Manila, dated October 19, 2003.4 Philippines.13

The facts are as follows: The Board and the PRC (petitioners) appealed the
case to the CA, stating that while respondent
Yasuyuki Ota (respondent) is a Japanese submitted documents showing that foreigners are
national, married to a Filipina, who has allowed to practice medicine in Japan, it was not
continuously resided in the Philippines for more shown that the conditions for the practice of
than 10 years. He graduated from Bicol Christian medicine there are practical and attainable by a
College of Medicine on April 21, 1991 with a foreign applicant, hence, reciprocity was not
degree of Doctor of Medicine.5 After successfully established; also, the power of the PRC and the
completing a one-year post graduate internship Board to regulate and control the practice of
training at the Jose Reyes Memorial Medical medicine is discretionary and not ministerial,
Center, he filed an application to take the medical hence, not compellable by a writ of mandamus.14
board examinations in order to obtain a medical
license. He was required by the Professional The CA denied the appeal and affirmed the ruling
Regulation Commission (PRC) to submit an of the RTC.15
affidavit of undertaking, stating among others
that should he successfully pass the same, he Hence, herein petition raising the following issue:
would not practice medicine until he submits
proof that reciprocity exists between Japan and WHETHER THE COURT OF APPEALS
the Philippines in admitting foreigners into the COMMITTED A REVERSIBLE ERROR IN
practice of medicine.6 FINDING THAT RESPONDENT HAD
ESTABLISHED THE EXISTENCE OF
Respondent submitted a duly notarized English RECIPROCITY IN THE PRACTICE OF
translation of the Medical Practitioners Law of MEDICINE BETWEEN THE PHILIPPINES
Japan duly authenticated by the Consul General AND JAPAN.16
of the Philippine Embassy to Japan, Jesus I.
Yabes;7 thus, he was allowed to take the Medical Petitioners claim that: respondent has not
Board Examinations in August 1992, which he established by competent and conclusive
subsequently passed.8 evidence that reciprocity in the practice of
medicine exists between the Philippines and
In spite of all these, the Board of Medicine Japan. While documents state that foreigners are
(Board) of the PRC, in a letter dated March 8, allowed to practice medicine in Japan, they do
1993, denied respondent's request for a license not similarly show that the conditions for the
to practice of medicine in said country are practical
and attainable by a foreign applicant. There is no
practice medicine in the Philippines on the ground reciprocity in this case, as the requirements to
that the Board "believes that no genuine practice medicine in Japan are practically
reciprocity can be found in the law of Japan as impossible for a Filipino to comply with. There are
there is no Filipino or foreigner who can possibly also ambiguities in the Medical Practitioners Law
practice there."9 of Japan, which were not clarified by respondent,
i.e., what are the provisions of the School
Respondent then filed a Petition Educations Laws, what are the criteria of the
for Certiorari and Mandamus against the Board Minister of Health and Welfare of Japan in
before the RTC of Manila on June 24, 1993, which determining whether the academic and technical
petition was amended on February 14, 1994 to capability of foreign medical graduates are the
implead the PRC through its Chairman.10 same or better than graduates of medical schools
in Japan, and who can actually qualify to take the
In his petition before the RTC, respondent alleged preparatory test for the National Medical
that the Board and the PRC, in refusing to issue Examination. Consul General Yabes also stated
in his favor a Certificate of Registration and/or that there had not been a single Filipino who was
issued a license to practice medicine by the through years of education and training, and
Japanese Government. The publication showing which requires that one must first secure a
that there were foreigners practicing medicine in license from the state through professional board
Japan, which respondent presented before the examinations.27
Court, also did not specifically show that Filipinos
were among those listed as practicing said Indeed,
profession.17 Furthermore, under Professional
Regulation Commission v. De Guzman,18 the [T]he regulation of the practice of medicine in all
power of the PRC and the Board to regulate and its branches has long been recognized as a
control the practice of medicine includes the reasonable method of protecting the health and
power to regulate admission to the ranks of those safety of the public. That the power to regulate
authorized to practice medicine, which power is and control the practice of medicine includes the
discretionary and not ministerial, hence, not power to regulate admission to the ranks of those
compellable by a writ of mandamus.19 authorized to practice medicine, is also well
recognized. Thus, legislation and administrative
Petitioners pray that the CA Decision dated regulations requiring those who wish to practice
November 16, 2004 be reversed and set aside, medicine first to take and pass medical board
that a new one be rendered reinstating the Board examinations have long ago been recognized as
Order dated March 8, 1993 which disallows valid exercises of governmental power. Similarly,
respondent to practice medicine in the the establishment of minimum medical
Philippines, and that respondent's petition before educational requirements - i.e., the completion of
the trial court be dismissed for lack of merit.20 prescribed courses in a recognized medical school
- for admission to the medical profession, has
In his Comment, respondent argues that: Articles also been sustained as a legitimate exercise of
2 and 11 of the Medical Practitioners Law of the regulatory authority of the state."28
Japan and Section 9 of the Philippine Medical Act
of 1959 show that reciprocity exists between the It must be stressed however that the power to
Philippines and Japan concerning the practice of regulate the exercise of a profession or pursuit of
medicine. Said laws clearly state that both an occupation cannot be exercised by the State
countries allow foreigners to practice medicine in or its agents in an arbitrary, despotic, or
their respective jurisdictions as long as the oppressive manner. A political body which
applicant meets the educational requirements, regulates the exercise of a particular privilege
training or residency in hospitals and pass the has the authority to both forbid and grant such
licensure examination given by either country. privilege in accordance with certain conditions. As
Consul General Yabes in his letter dated January the legislature cannot validly bestow an arbitrary
28, 1992 stated that "the Japanese Government power to grant or refuse a license on a public
allows a foreigner to practice medicine in Japan agency or officer, courts will generally strike
after complying with the local requirements." The down license legislation that vests in public
fact that there is no reported Filipino who has officials discretion to grant or refuse a license to
successfully penetrated the medical practice in carry on some ordinarily lawful business,
Japan does not mean that there is no reciprocity profession, or activity without prescribing definite
between the two countries, since it does not rules and conditions for the guidance of said
follow that no Filipino will ever be granted a officials in the exercise of their power.29
medical license by the Japanese Government. It
is not the essence of reciprocity that before a R.A. No. 2382 otherwise known as the Medical
citizen of one of the contracting countries can Act of 1959 states in Section 9 thereof that:
demand its application, it is necessary that the
interested citizen’s country has previously Section 9. Candidates for Board Examinations.-
granted the same privilege to the citizens of the Candidates for Board examinations shall have the
other contracting country.21 Respondent further following qualifications:
argues that Section 20 of the Medical Act of
195922 indicates the mandatory character of the 1. He shall be a citizen of the Philippines or a
statute and an imperative obligation on the part citizen of any foreign country who has submitted
of the Board inconsistent with the idea of competent and conclusive documentary evidence,
discretion. Thus, a foreigner, just like a Filipino confirmed by the Department of Foreign Affairs,
citizen, who successfully passes the examination showing that his country’s existing laws permit
and has all the qualifications and none of the citizens of the Philippines to practice medicine
disqualifications, is entitled as a matter of right to under the same rules and regulations governing
the issuance of a certificate of registration or a citizens thereof;
physician’s license, which right is enforceable
by mandamus.23 xxxx

Petitioners filed a Reply24 and both parties filed Presidential Decree (P.D.) No. 223 30 also provides
their respective memoranda25 reiterating their in Section (j) thereof that:
arguments.
j) The [Professional Regulation] Commission
The Court denies the petition for lack of merit. may, upon the recommendation of the Board
concerned, approve the registration of and
There is no question that a license to practice authorize the issuance of a certificate of
medicine is a privilege or franchise granted by registration with or without examination to a
the government.26 It is a right that is earned foreigner who is registered under the laws of his
country: Provided, That the requirement for the may not be granted license to practice medicine
registration or licensing in said foreign state or in the Philippines.
country are substantially the same as those
required and contemplated by the laws of the The Court does not agree.
Philippines and that the laws of such foreign state
or country allow the citizens of the Philippines to R.A. No. 2382, which provides who may be
practice the profession on the same basis and candidates for the medical board examinations,
grant the same privileges as the subject or merely requires a foreign citizen to submit
citizens of such foreign state or country: competent and conclusive documentary evidence,
Provided, finally, That the applicant shall submit confirmed by the Department of Foreign Affairs
competent and conclusive documentary evidence, (DFA), showing that his country’s existing laws
confirmed by the Department of Foreign Affairs, permit citizens of the Philippines to practice
showing that his country's existing laws permit medicine under the same rules and regulations
citizens of the Philippines to practice the governing citizens thereof.
profession under the rules and regulations
governing citizens thereof. The Commission is Section (j) of P.D. No. 223 also defines the
also hereby authorized to prescribe additional extent of PRC's power to grant licenses, i.e., it
requirements or grant certain privileges to may, upon recommendation of the board,
foreigners seeking registration in the Philippines approve the registration and authorize the
if the same privileges are granted to or some issuance of a certificate of registration with or
additional requirements are required of citizens of without examination to a foreigner who is
the Philippines in acquiring the same certificates registered under the laws of his country,
in his country; provided the following conditions are met: (1)
that the requirement for the registration or
xxxx licensing in said foreign state or country are
substantially the same as those required and
As required by the said laws, respondent contemplated by the laws of the Philippines; (2)
submitted a copy of the Medical Practitioners Law that the laws of such foreign state or country
of Japan, duly authenticated by the Consul allow the citizens of the Philippines to practice
General of the Embassy of the Philippines in the profession on the same basis and grant the
Japan, which provides in Articles 2 and 11, thus: same privileges as the subject or citizens of such
foreign state or country; and (3) that the
Article 2. Anyone who wants to be medical applicant shall submit competent and conclusive
practitioner must pass the national examination documentary evidence, confirmed by the DFA,
for medical practitioner and get license from the showing that his country's existing laws permit
Minister of Health and Welfare. citizens of the Philippines to practice the
profession under the rules and regulations
xxxx governing citizens thereof.

Article 11. No one can take the National Medical The said provision further states that the PRC is
Examination except persons who conform to one authorized to prescribe additional requirements
of the following items: or grant certain privileges to foreigners seeking
registration in the Philippines if the same
1. Persons who finished regular medical privileges are granted to or some additional
courses at a university based on the requirements are required of citizens of the
School Education Laws (December 26, Philippines in acquiring the same certificates in
1947) and graduated from said university. his country.

2. Persons who passed the preparatory Nowhere in said statutes is it stated that the
test for the National Medical Examination foreign applicant must show that the conditions
and practiced clinics and public sanitation for the practice of medicine in said country are
more than one year after passing the said practical and attainable by Filipinos. Neither is it
test. stated that it must first be proven that a Filipino
has been granted license and allowed to practice
3. Persons who graduated from a foreign his profession in said country before a foreign
medical school or acquired medical applicant may be given license to practice in the
practitioner license in a foreign country, Philippines. Indeed, the phrase used in both R.A.
and also are recognized to have the same No. 2382 and P.D. No. 223 is that:
or more academic ability and techniques
as persons stated in item 1 and item 2 of [T]he applicant shall submit] competent and
this article.31 conclusive documentary evidence, confirmed by
the Department of Foreign Affairs, showing that
Petitioners argue that while the Medical his country's existing laws permit citizens of the
Practitioners Law of Japan allows foreigners to Philippines to practice the profession [of
practice medicine therein, said document does medicine] under the [same] rules and regulations
not show that conditions for the practice of governing citizens thereof. x x x (Emphasis
medicine in said country are practical and supplied)
attainable by a foreign applicant; and since the
requirements are practically impossible for a It is enough that the laws in the foreign country
Filipino to comply with, there is no reciprocity permit a Filipino to get license and practice
between the two countries, hence, respondent therein. Requiring respondent to prove first that
a Filipino has already been granted license and is Jesus I. Yabes
actually practicing therein unduly expands the Minister Counsellor &
requirements provided for under R.A. No. 2382 Consul General
and P.D. No. 223.
From said letter, one can see that the Japanese
While it is true that respondent failed to give Government allows foreigners to practice
details as to the conditions stated in the Medical medicine therein provided that the local
Practitioners Law of Japan -- i.e., the provisions requirements are complied with, and that it is not
of the School Educations Laws, the criteria of the the impossibility or the prohibition against
Minister of Health and Welfare of Japan in Filipinos that would account for the absence of
determining whether the academic and technical Filipino physicians holding licenses and practicing
capability of foreign medical graduates are the medicine in Japan, but the difficulty of passing
same as or better than that of graduates of the board examination in the Japanese language.
medical schools in Japan, and who can actually Granting that there is still no Filipino who has
qualify to take the preparatory test for the been given license to practice medicine in Japan,
National Medical Examination - respondent, it does not mean that no Filipino will ever be able
however, presented proof that foreigners are to be given one.
actually practicing in Japan and that Filipinos are
not precluded from getting a license to practice Petitioners next argue that as held in De
there. Guzman, its power to issue licenses is
discretionary, hence, not compellable
Respondent presented before the trial court a by mandamus.
Japanese Government publication, Physician-
Dentist-Pharmaceutist Survey, showing that The Court finds that the factual circumstances of
there are a number of foreign physicians De Guzman are different from those of the case
practicing medicine in Japan.32 He also presented at bar; hence, the principle applied therein
a letter dated January 28, 1992 from Consul should be viewed differently in this case. In De
General Yabes,33 which states: Guzman, there were doubts about the integrity
and validity of the test results of the examinees
Sir: from a particular school which garnered
unusually high scores in the two most difficult
With reference to your letter dated 12 January subjects. Said doubts called for serious inquiry
1993, concerning your request for a Certificate of concerning the applicants’ satisfactory
Confirmation for the purpose of establishing a compliance with the Board requirements.34 And
reciprocity with Japan in the practice of medical as there was no definite showing that the
profession relative to the case of Mr. Yasuyuki requirements and conditions to be granted
Ota, a Japanese national, the Embassy wishes to license to practice medicine had been
inform you that inquiries from the Japanese satisfactorily met, the Court held that the writ
Ministry of Foreign Affairs, Ministry of Health and of mandamus may not be granted to secure said
Welfare as well as Bureau of Immigration yielded privilege without thwarting the legislative will.35
the following information:
Indeed, to be granted the privilege to practice
1. They are not aware of a Filipino medicine, the applicant must show that he
physician who was granted a license by possesses all the qualifications and none of the
the Japanese Government to practice disqualifications. It must also appear that he has
medicine in Japan; fully complied with all the conditions and
requirements imposed by the law and the
2. However, the Japanese Government licensing authority.36
allows a foreigner to practice medicine in
Japan after complying with the local In De Guzman itself, the Court explained that:
requirements such as holding a valid visa
for the purpose of taking the medical A careful reading of Section 2037 of the Medical
board exam, checking the applicant's Act of 1959 discloses that the law uses the word
qualifications to take the examination, "shall" with respect to the issuance of certificates
taking the national board examination in of registration. Thus, the petitioners [PRC] "shall
Japanese and filing an application for the sign and issue certificates of registration to those
issuance of the medical license. who have satisfactorily complied with the
requirements of the Board." In statutory
Accordingly, the Embassy is not aware of a single construction the term "shall" is a word of
Filipino physician who was issued by the command. It is given imperative meaning. Thus,
Japanese Government a license to practice when an examinee satisfies the requirements for
medicine, because it is extremely difficult to pass the grant of his physician's license, the Board is
the medical board examination in the Japanese obliged to administer to him his oath and register
language. Filipino doctors here are only allowed him as a physician, pursuant to Section 20 and
to work in Japanese hospitals as trainees under par. (1) of Section 22 of the Medical Act of
the supervision of a Japanese doctor. On certain 1959.38
occasions, they are allowed to show their medical
skills during seminars for demonstration purposes In this case, there is no doubt as to the
only. (Emphasis supplied) competence and qualifications of respondent. He
finished his medical degree from Bicol Christian
Very truly yours, 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 For several months prior to November 14,
defendant intermittently occupied a room which
[Crim. No. 5852. In Bank. Oct. 5, 1956.] he rented in Vallejo at the home of a Mrs. Hill, an
THE PEOPLE, Respondent, v. CHARLES E. COLE, elderly widow who had agreed to marry him.
Appellant. Early in the afternoon of that day, he came to
visit Mrs. Hill and left after about two hours. He
COUNSEL returned at 9 p.m., and, when Mrs. Hill opened
the door, he exclaimed, "Helen shot herself,
William E. Jensen and Kenneth K. Casper for Helen shot herself." He told Mrs. Hill that Mrs.
Appellant. Roberts, while in the station wagon, took a gun
out of the glove compartment, said, "I ought to
Edmund G. Brown, Attorney General, Doris H. shoot you and the dog and myself," pointed the
Maier and F. G. Girard, Deputy Attorneys gun at herself and fired the fatal shot.
General, for Respondent.
Mrs. Hill and defendant went out to the station
OPINION wagon in front of the house, and the body of Mrs.
Roberts, which was still warm, was on the front
GIBSON, C.J. 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
A jury found defendant guilty of first degree
went to the motel where defendant and Mrs.
murder and fixed his punishment at life
Roberts had been staying. Defendant awakened
imprisonment. The principal questions raised on
the motel owner in order to obtain a key, stating
this appeal are whether the trial court erred in
that "mama" had gone to the movies with
ruling upon the admissibility of evidence and
another man and that, if she came back and
whether the evidence is sufficient to support the
wanted to reach defendant, he would be at Mrs.
verdict.
Hill's residence. After collecting his belongings,
he drove with Mrs. Hill to her home.
The body of the victim, Mrs. Helen Roberts, was
found near a road in Sutter County on the
Defendant cautioned Mrs. Hill not to reveal their
afternoon of November 15, 1954. Dr. Paxton, a
activities of that evening and instructed her to
pathologist, examined the body and performed
say that he had left Mrs. Roberts at a theater,
an autopsy. He testified that Mrs. Roberts was an
arranging to return for her at 9 p.m., but that,
obese woman about 50 years of age, that her
when he and Mrs. Hill went to the theater at that
death was caused by a gunshot wound, and that
hour, Mrs. Roberts entered a car with another
the fatal bullet, which he removed from the body,
man and drove away. He gave Mrs. Hill a gun,
had entered below the left armpit and had
requesting that she dispose of it, and she
traveled across the thorax, with a slight deviation
wrapped it up and asked one of her boarders to
backward and upward, penetrating the heart,
drop it in the bay. The boarder became
right lung, and soft tissue beneath the right
suspicious and turned the gun over to the police.
shoulder and striking the humerus of the right
When questioned by the authorities, defendant
arm three inches below the shoulder joint.
stated that he and Mrs. Roberts left their motel in
Vallejo on the afternoon of November 14, that,
Defendant did not testify at the trial, and there is after stopping at a grocery store, he took her to a
no substantial conflict in the evidence. In August theater and that, when he returned for her, he
of 1954 Mrs. Roberts abandoned her husband saw her drive away with another man.
and began living with defendant in various motels
under fictitious names. Late in the afternoon of
The gun which defendant gave Mrs. Hill after the
November 14, defendant and Mrs. Roberts drove
death of Mrs. Roberts was introduced in evidence
away in a station wagon from a Vallejo motel
and was identified by a ballistics expert as the
where they were then staying. About 6:30 p.m.
one which fired the bullet removed from Mrs.
they stopped in front of a grocery store which
Roberts' body. Mrs. Hill testified that the gun
Mrs. Roberts entered. Later defendant got out of
looked like one which belonged to her. She said
the car, and a young man named Shelton made a
that about six weeks before the death of Mrs.
remark about the damp weather. Defendant drew
Roberts she had given [47 Cal. 2d 103] her gun
an automatic pistol from his belt, pointed it at the
to defendant to be cleaned and that he returned
sky, asked whether he should do something
it in about a week. She placed it on the dresser in
about the weather, replaced the gun under his
her bedroom, and later she noticed that it had
coat and went into the store. Shelton testified
disappeared. She could not say on what day she
that the gun looked like the weapon identified at
first became aware that it was missing but stated
the trial as the one which fired the shot killing
that it disappeared sometime during the week
Mrs. Roberts. When defendant and Mrs. Roberts
preceding Mrs. Roberts' death.
left the store, they drove across the street to a
service station, where, before leaving together,
they talked to the attendant for approximately The first question is whether the trial court erred
20 [47 Cal. 2d 102] minutes. In the course of in ruling on the admissibility of evidence. Upon
this conversation, Mrs. Roberts was in good being called as a witness, Dr. Paxton, who
spirits, and defendant was solemn. 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 common experience that laymen may not be
wound could have been self-inflicted, defendant assisted by the opinion of a doctor, who has
objected on the grounds that no foundation had special knowledge regarding anatomy and
been laid as to the qualifications of the witness to injuries to the human body.
form such an opinion and that the matter was not
a proper subject for expert testimony. The We are aware that cases in some jurisdictions
objection was overruled, and the doctor testified have held that testimony of this type is not
that "This would be a very unusual pattern for a admissible. (Treat v. Merchants' Life Assn., 198
self-inflicted wound." In elaborating, he referred Ill. 431 [64 N.E. 992, 994]; Knights Templars' &
to the location of the wound, the course of the Masons' Life Indem. Co. v. Crayton, 110 Ill. App.
bullet and the obesity of the victim, and he 648, 662-663; Aetna Life Ins. Co. v. Kaiser, 115
stated that it would be difficult for a person, Ky. 539 [74 S.W. 203, 205] [overruled on other
whether right-handed or left-handed, to hold the grounds in Inter-Southern Life Ins. Co. v.
muzzle of a gun against himself in the position Hinkle's Admx., 226 Ky. 724 [11 S.W.2d 913,
necessary to produce such a wound. He testified 914]]; State v. Carr, 196 N.C. 129 [144 S.E.
that his opinion was based on his training and 698, 699-700]; State v. Gibson, 69 N.D. 70 [284
experience, as well as the condition of the body, N.W. 209, 217-218]; State v. Bradley, 34 S.C.
that he had examined suicide victims who had 136 [13 S.E. 315, 316-317]; State v. McCravy,
died of gunshot wounds and that he had never 133 Tenn. 358 [181 S.W. 165, 168]; Maynard v.
seen a self-inflicted wound "in this position." State, 154 Tex.Crim. 521 [229 S.W.2d 65, 67];
Metropolitan Life Ins. Co. v. Wagner, 50
Many cases have set forth the general principles Tex.Civ.App. 233 [47 Cal. 2d 105] [109 S.W.
to be applied in considering the admissibility of 1120, 1123-1124]; see People v. Curtright, 258
expert opinion on the question whether a wound Ill. 430 [101 N.E. 551, 554].) [2] In our opinion,
was self-inflicted. [1] Although courts have not however, they do not represent the better view
always used the same language, the decisive with respect to whether the trier of fact would
consideration in determining the admissibility of ordinarily be in a position to determine, as
expert opinion evidence is whether the subject of intelligently as a doctor, whether a wound was
inquiry is one of such common knowledge that self-inflicted. [3] Moreover, some of these cases
men of ordinary education could reach a rest, at least in part, upon the ground that the
conclusion as intelligently as the witness or opinion of the doctor would go to an ultimate
whether, on the other hand, the matter is issue of fact to be resolved by the jury, whereas
sufficiently beyond common experience that the in this state we have followed the modern
opinion of an expert would assist the trier of fact. tendency and have refused to hold that expert
(See George v. Bekins Van & Storage Co., 33 Cal. opinion is inadmissible merely because it
2d 834, 844 [205 P.2d 1037]; Vallejo etc. R. R. coincides with an ultimate issue of fact. (People
Co. v. Reed Orchard Co., 169 Cal. 545, 570-571 v. Wilson, 25 Cal. 2d 341, 349 [153 P.2d 720];
[147 P. 238]; Howland v. Oakland C. St. Ry. Co., People v. King, 104 Cal. App. 2d 298, 304 [231
110 Cal. 513, 522 [42 P. 983]; Wells Truckways, P.2d 156]; see People v. Martinez, 38 Cal. 2d
Ltd. v. Cebrian, 122 Cal.[47 Cal. 2d 556, 564 [241 P.2d 224]; Wells Truckways, Ltd.
104] App.2d 666, 677-678 [265 P.2d 557]; Eger v. Cebrian, 122 Cal. App. 2d 666, 678 [265 P.2d
v. May Department Stores, 120 Cal. App. 2d 554, 557]; 7 Wigmore on Evidence (3d ed. 1940), §§
558 [261 P.2d 281]; Manney v. Housing 1920, 1921, pp. 17, 18; 2 Morgan, Basic
Authority, 79 Cal. App. 2d 453, 460 [180 P.2d Problems of Evidence, p. 194 et seq.; 2 Wharton,
69]; Code Civ. Proc., § 1870, subd. 9; fn. * 7 Criminal Evidence (11th ed.), § 957, p. 1682.)
Wigmore on Evidence (3d ed. 1940), § 1923, pp.
21, 22.) A conclusion that the testimony complained of
was inadmissible would amount to a holding that
In two California cases a doctor's opinion that a the jurors, although laymen whose experience
fatal wound could not have been self-inflicted with gunshot wounds and suicide was likely to be
was relied upon in holding that there was limited or nonexistent, could not have derived
sufficient evidence to establish the corpus delicti. assistance from the opinion of a doctor who was
(People v. Black, 103 Cal. App. 2d 69, 75 [229 an expert on those matters and had personally
P.2d 61]; People v. Coker, 78 Cal. App. 151, 161 examined the body and performed the autopsy
[248 P. 542].) In a number of other jurisdictions as a specialist on causes of death. [4] Where
it has been held that medical opinion as to expert opinion evidence is offered, much must be
whether a wound could have been self-inflicted left to the discretion of the trial court (People v.
was admissible. (State v. Lee, 65 Conn. 265 [30 Haeussler, 41 Cal. 2d 252, 260 [260 P.2d 8]),
A. 1110, 1113-1114, 48 Am.St.Rep. 202, 27 and we are satisfied that there was no abuse of
L.R.A. 498]; Everett v. State, 62 Ga. 65, 71; discretion in permitting Dr. Paxton to express his
State v. Schneck, 85 Kan. 334 [116 P. 823, opinion. [5] The jurors, of course, were not
824]; State v. Sharp, 145 La. 891 [83 So. 181, bound by the opinion of the witness but were free
182]; State v. Knight, 43 Me. 11, 131; to determine the weight to which it was entitled
Commonwealth v. Spiropoulos, 208 Mass. 71 [94 and to disregard it if they found it to be
N.E. 451, 452]; Miera v. Territory, 13 N.M. 192 unreasonable, and they were so instructed. (Pen.
[81 P. 586, 588-589]; People v. Wilson, 109 N.Y. Code, § 1127b fn. *.)
345 [16 N.E. 540, 543]; Commonwealth v.
Puglise, 276 Pa. 235 [120 A. 401, 402].) The The early cases of People v. Farley (1899), 124
reasoning underlying these decisions is that the Cal. 594, 595 [57 P. 571], People v. Milner
subject of self-inflicted wounds is not one of such (1898), 122 Cal. 171, 181 [47 Cal. 2d 106] [54
P. 833], People v. Smith (1892), 93 Cal. 445, support the conclusion that his plan to involve
447 [29 P. 64], and People v. Westlake (1882), Mrs. Hill had been conceived before the crime
62 Cal. 303, 309, are readily distinguishable. was committed.
They did not involve the question of suicide but
held that a doctor may not give an opinion, based [10] There was also evidence that, while
on the course of a bullet, as to the posture of a defendant was living with Mrs. Roberts, who was
person shot by another or as to the relative in financial distress, he planned to marry Mrs.
positions of the victim and the one who fired the Hill, who had a substantial bank account and
shot. As pointed out in the Milner case, it is owned a home and other property. During the
impossible to determine those matters from the period that defendant was living with Mrs.
course of the bullet alone, since a number of Roberts he borrowed money from Mrs. Hill, and
variables might be involved, such as whether the on the day of the killing he represented to the
victim was leaning forward or standing erect. owner of the motel where he was staying that
(See also People v. Salaz, 66 Cal. App. 173, 183 property belonging to Mrs. Hill was owned by him
[225 P. 777].) and expressed a desire to ascertain the feasibility
of locating a service station on it. The jury might
The next question is whether the evidence is have determined that defendant had become
sufficient to support the verdict of first degree dissatisfied with the relationship existing between
murder. Section 187 of the Penal Code defines him and Mrs. Roberts and that he planned to kill
murder as the unlawful killing of a human being her in order to remove her as an obstacle to his
with malice aforethought, and section 189 of that plan of obtaining Mrs. Hill's property through
code provides, in part, that all murder marriage. A showing of motive indicating that the
perpetrated by any kind of willful, deliberate and killing was planned is evidence tending to support
premeditated killing is murder of the first degree. a finding of deliberation and premeditation. For
example, in People v. Gulbrandsen, supra, 35
[6] The record clearly warrants a conclusion that Cal. 2d 514, where we held that deliberation and
defendant killed Mrs. Roberts, and there is premeditation were sufficiently shown, we relied,
nothing showing provocation or justification for in part, on evidence that the defendant's motive
the homicide. Under such circumstances, malice in killing the two victims was to get them out of
will be implied. (Pen. Code, § 188.) the way so that he could force himself upon a
woman. (See also People v. Werner, 111 Cal.
[7] Deliberation and premeditation may be App. 2d 264, 272 [244 P.2d 476].)
inferred from proof of circumstances which will
furnish a reasonable foundation for such an The evidence is sufficient to support the jury's
inference, and, where the evidence is not in law finding that defendant was possessed of a willful,
insufficient, the matter is exclusively within the deliberate and premeditated intent to kill. [47
province of the jury for determination. (People v. Cal. 2d 108]
Gulbrandsen, 35 Cal. 2d 514, 519-520 [218 P.2d
977].) [8] There was evidence that defendant [11] There is no merit in defendant's contention
had secretly taken Mrs. Hill's gun from her that the court erred in refusing to instruct the
dresser during the week preceding Mrs. Roberts' jury that Mrs. Hill was an accomplice as a matter
death, that he was carrying the weapon on his of law. The question of complicity was one of
person about 6:30 p.m. on the evening she died fact, and its determination was left to the jury
and that he used it to kill Mrs. Roberts sometime under instructions which fully and correctly set
before 9 p.m. The jury could infer that defendant forth the rules of law to be applied.
had taken the gun for the purpose of killing her.
The judgment and the order denying a new trial
[9] Moreover, the evidence was sufficient to show are affirmed.
that defendant planned to implicate Mrs. Hill so
as to secure her assistance in concealing his guilt Shenk, J., Traynor, J., Spence, J., and McComb,
and that he had formed [47 Cal. 2d 107] this J., concurred.
plan before committing the crime. It was
established not only that he took her gun and SCHAUER, J.,
used it in the killing but also that he brought the
body to Mrs. Hill's home, represented that Mrs.
Concurring and Dissenting.
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 I agree that there was ample properly admitted
road. Defendant also requested Mrs. Hill to evidence to support the finding that defendant
dispose of the gun used in the killing and murdered Mrs. Roberts wilfully, deliberately, and
instructed her not to disclose their activities but with premeditated intent to kill, and I find no
to give such an account of events as would miscarriage of justice. However, I disagree with
substantiate his subsequent claim that he had the holding that in the circumstances of this case
last seen Mrs. Roberts driving away from a Dr. Paxton was properly allowed to testify, in
theater with another man. Mrs. Roberts had been answer to the question, "assuming that the bullet
seen alive two hours before defendant brought you took from the body ... had come from a .32
her body, which was still warm, to Mrs. Hill's caliber Colt automatic pistol, do you have an
home. The taking of Mrs. Hill's gun during the opinion as to whether or not that pistol could
preceding week and the speed with which have been held by the deceased at the time the
defendant acted following the killing would trigger was pulled and the gun was discharged?"
that "I have an opinion ... This would be a very however. ... The value will go to the jury, its
unusual pattern for a self-inflicted wound." It weight. You of course will have full opportunity to
seems obvious to me that the pertinent question cross-examine Dr. Paxton in that respect." This
here is not whether it was usual or unusual for ruling, in my opinion, was error because the
persons who kill themselves to do so by shooting prosecution had not adduced evidence upon
themselves in the manner in which deceased was which the doctor could be qualified to either form
shot, but whether this particular woman inflicted or express an opinion that the wound in this case
this particular wound upon herself. It appears to could or could not have been self- inflicted.
me that the doctor's testimony as to the
frequencies of occurrences of this kind of wound Before the jury the doctor then testified on direct
and of other kinds of wounds among other examination that "This would be a very unusual
persons committing suicide is irrelevant to any pattern for a self-inflicted wound"; that he did
issue here. not know whether deceased was right-handed or
left-handed, but that (indicating upon himself
The doctor (whose qualifications as a pathologist with the pistol which inflicted the wound) it would
are not disputed) described the course taken by be [47 Cal. 2d 110] difficult to inflict such a
the bullet, indicated it on a photograph of wound upon himself with either hand. It appears
deceased and sketched it on a blackboard. The to me that in the absence of showing some
bullet entered the body "anteriorally and laterally similarity or defined dissimilarity between the
in the left chest" between the third and fourth doctor's and the decedent's pertinent capabilities,
ribs, traveled up through the heart and upper the doctor's testimony concerning himself would
lobe of the right lung, and struck and shattered be immaterial. On cross- examination the doctor
the humerus of the right arm about three inches testified that he had not measured the
below the shoulder joint. deceased's arms. The basis of the doctor's
opinion that the wound was not self- inflicted was
Before the jury the prosecuting attorney asked, then brought out: he had examined by autopsy
in various forms, if the doctor had an opinion as "perhaps twenty people" who died from gunshot
to whether the wound could have been self- wounds and seen "numerable cases in the
inflicted. This might have been a proper [47 Cal. emergency hospitals which I have worked in"; "I
2d 109] approach if a sufficient factual can form an opinion from my past experiences in
foundation had been laid; but such foundation examining the suicidal victims ... and I would say
had not been established, and, as subsequently that ninety percent of the suicidal victims I have
appeared, did not exist. Defense counsel examined have shot themselves in the head ...
objected, and said, "I feel this is going into a And a majority of those are in the right temple ...
matter that is for the jury to decide, and not The next most common site is through the mouth
called upon for any expert witness' testimony. I ... The next most common site is an attempt at
don't believe there has been any foundation or the heart ... and I have never seen one in this
ground showing this doctor is an expert, whether position. ... The location in my opinion indicates
a wound can be self-inflicted or whether inflicted that this is not self-inflicted."
by some other agency." (Italics added.) This
objection raised, although not in a particularly The basis of the doctor's opinion as expressed in
apt manner, the question whether a sufficient his testimony shows that there was not adequate
factual foundation had been laid upon which this factual foundation for, and that he was not
doctor or any doctor could be qualified to give an qualified to express, the opinion above quoted. It
opinion that this woman could or could not have was of no concern to the jury, and not helpful to
shot herself in the fashion in which she was shot. them, to know that "ninety percent of the suicidal
The prosecuting attorney said, "We feel the victims" examined by Dr. Paxton had "shot
doctor is qualified, having seen this body; he has themselves in the head" rather than shot
noticed the length of the arms of the deceased themselves in certain other places or, it may be
person and ... has already testified to her obesity interpolated, had jumped off bridges or hit
and so forth and so on; we feel he is in a position themselves over the head with axes. The case
to tell us whether he thinks that person could here concerned the woman who did die from the
have discharged a pistol into her own person as wound in the chest described above. The
to cause this wound." But as hereinafter shown question for the jury was whether that particular
the doctor himself established the facts showing wound was inflicted by decedent or by another
want of foundation for formation of an opinion person. Since the prosecution had not, before the
entitled to be received as "expert opinion" on the doctor gave his opinion, shown a factual base
pertinent issue. upon which the doctor as a pathologist could
intelligently and reasonably form and support the
There was further argument on the question opinion that the wound here involved was not
outside the presence of the jury, during which self-inflicted, fn. 1 that opinion should not have
defense counsel correctly pointed out that "as far been received in evidence. The error of receiving
as the testimony as to the length of the arm, or it became more apparent when on his cross-
anything like that, those facts are not yet in examination it developed that he had no basis for
evidence." The trial court commented, "if the an opinion that this particular woman could not
question of death of this woman depends solely have shot herself as she was shot. However, as
... [on] the expert or opinion testimony of Dr. stated above, it does not appear to me, [47 Cal.
Paxton, they would be on very weak ground. 2d 111] from an examination of the entire
However, I am making no ruling on that at this record, that the error resulted in a miscarriage of
time. I am now overruling the objection, 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.