THE PEOPLE, Respondent, v. ARTHUR O'LEARY, Appellant

[No. 20358. In Bank. June 26, 1888.] THE PEOPLE, Respondent, v. ARTHUR O’LEARY, Appellant. Criminal Law—Physicians and Surgeons—Practicing-Medicine without a Certificate — Information —Statute.—An information substantially following the language of the “Act to regulate the practice of medicine in the state of California,” and which is sufficiently full and • . explicit in charging the offense, created by said statute, of willfully and unlawfully practicing medicine without having first procured a certificate to so practice from one of the boards of medical examiners appointed by the societies mentioned therein, etc., is not subject to demurrer for ambiguity, nor for failure to allege that the societies, corporations, or organizations named in the act were in existence, nor for failure to plead the statute by its title or name. Appeal — Bill of Exceptions — Instructions.—When the bill of exceptions contains none of the evidence, the appellate court will not reverse" the judgment for alleged error in the refusal' of instructions. Criminal Law—Pleas of Former Acquittal and Once in Jeopardy. —. The pleas of former acquittal and once in jeopardy'must be made and entered upon the minutes substantially in the form prescribed by section 1017 of the Penal Code, and if not so made and entered, the jury need not find upon them. The appellate court cannot resort to a written document filed at the time the plea was entered in aid of the plea actually entered, if such document is not properly incorporated in a bill of exceptions. Id. —Motion in Arrest of Judgment—Bill of Exceptions.—When a bill of exception is prepared for and used only on a motion in arrest of judgment, it cannot properly incorporate a written plea of the defendant not entered upon the minutes. A motion in arrest of judgment can only be founded on defects in the indictment or information. Id. —Filing New Information upon Demurrer Sustained. —A direction by the court to the district attorney to file a new information when a demurrer to a former information is sustained, is a sufficient compliance with section 1008 of the Penal Code, without rendering an opinion that the objection to the information could be overcome by filing another. Appeal from a judgment of the Superior Court of Yolo County. The information was filed March 8, 1887, and accused the defendant of a misdemeanor, “committed as follows, to wit:' The said Arthur O’Leary, on or about the twenty-seventh day of November, 1886, in the county of Yolo, state of California, then and there being, did willfully and unlawfully practice medicine; that prior to said time said defendant had not procured a certificate to so practice from one of the boards of medical examiners appointed by the Medical Society of- the State of California, the Eclectic Medical Society of the State of California, or the California State Homeopathic Medical Society, and prior to said time said defendant had not procured a certificate to practice medicine granted by the board of examiners appointed by the California State Medical Society of Homeopathic Practitioners; and said defendant was not at said time a lawfully commissioned surgeon of the United States army or navy practicing his profession within the limits of the state of California, contrary to the form, force, and effect of the statute,” etc. The defendant demurred to the information, assigning, among other grounds, “that it cannot be ascertained from said information whether defendant is charged with having practiced medicine without obtaining a certificate from one of the corporations or boards or societies mentioned in the information, or from all of them”; “that the act or pretended act under which defendant is charged is a'private statute, and is not pleaded by its title or name”; and “that it is not alleged in said information that there are any such societies, corporations, or organizations in existence, or that they ever existed, as it is alleged that defendant failed to procure a certificate from, and unless defendant knows whether they existed or not he cannot make a complete defense.” Further facts are stated in the opinion. R. Clark, for Appellant. Attorney-General Johnson, and F. S. Sprague, for Respondent. [MAJORITY — Paterson, J.] Paterson, J. The defendant was charged in the information with having practiced medicine without-having first obtained a certificate authorizing him to-do so, as required by the “Act to regulate the practice of medicine in the state. of California.” (Pen. Code, pp. 625-629.) The language of the information is sufficiently full and explicit in charging the offense, and we think that the court did not err in overruling the demurrer. The appeal is from the judgment only. The bill of exceptions contains none of the evidence. We cannot' say, therefore, that the court erred in refusing certain instructions referred to in appellant’s brief. In the former decision filed herein (Feb. 29, 1888), it was held that “the pleas of former acquittal and once in jeopardy, as the defendant asked to have them entered, were, in substantially the form required by the code.” In support of this proposition, there was quoted in the opinion a portion of the contents of a written plea offered by defendant’s counsel, and it was said: “If the clerk failed to make the entry as full as he ought to have done, the defendant cannot be made to suffer for that failure.” The pleas actually entered upon the minutes of the court were as follows: “1. Defendant pleads not guilty of the offense charged; 2. A former acquittal; 3. Once in jeopardy.” The jury found the defendant guilty, but did not find on the issues of former acquittal and once in jeopardy. The pleas as entered upon the minutes were insufficient. Section 1017 of the Penal Code prescribes the form for such pleas. If the defendant plead a former conviction or acquittal, the form is as-follows: “The defendant pleads that he has already been, convicted (or acquitted) of the offense charged by the judgment of the court of-(naming it), rendered at -(naming the place), on the-day of-If he plead once in jeopardy, the form is as follows: “The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place, and court).” The object of these forms is plain. The people should be informed of the circumstances as to time, place, and court. Hone of these circumstances are named in the plea actually entered upon the minutes of the court' below; and we cannot resort to the written document, which, it is claimed, was filed at the time the plea was entered in aid of the plea actually entered. Section 1017, supraT provides that “every plea must be oral, and entered upon the minutes of the court in substantially the following form.” The bill of exceptions in the record before us was prepared for and used only upon the motion in arrest of judgment. The bill of exceptions does not purport to be a bill prepared to present exceptions to the rulings of the court upon any other matter than that of the motion in arrest of judgment. The written plea referred to is not properly in the bill of exceptions. Section 1185 of the Penal Code prescribes the grounds upon which a motion in arrest of judgment may be made. It is “founded on any defects in the indictment or information mentioned in section 1004.” There was no error in the ruling of the court below upon the defendant’s motion in arrest of judgment, and the pleas referred to not being in the form required by the code, it was not necessary for the jury to find on' them. We see no merit in the contention that the defendant should have been discharged from custody because the court below failed to render an opinion that the objection to the information to which the demurrer had been sustained could be overcome by filing another. The court-directed the district attorney to file a new information, and this was a sufficient compliance with section 1008 of the Penal Code. It was not said in People v. Jordan, 63 Cal. 219, that the court must, in addition to directing the district attorney to file a new information, render an opinion that the objection to the information could be overcome by filing another. Judgment and order affirmed. Searls, C. J., McFarland, J., and Thornton, J., concurred.