People v. O'Leary , 3 Cal. Unrep. 102 ( 1888 )

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.