Commonwealth v. Clymer , 1906 Pa. Super. LEXIS 15 ( 1906 )

Opinion by

Rice, P. J.,

It is argued that the Act of May 18, 1893, P. L. 94, is unconstitutional, because the subject of legislation is xiot cleaxiy expressed in the title. The particular objection is that the title gives no notice of the provision, contained in the fourteenth section, making a violatioxi of any of the provisions of the act, especially those relating to practicing xxxedicixxe or surgery without license and registration, a misdexxxeanor punishable by fine. Inasmuch as the subject of legislation, as expressed in the title, is the examination and licensing "of practitioners of medicine and surgery and the further regulation of the practice of medicine and surgery, any one would naturally suppose from reading tlie title that the act not only provided for the licensing of such practitioners but declared the consequences of practicing without complying with its provisions. “For,” as Blackstone says, “it is but lost labor to say, ‘do this, or avoid that,’ unless we also declare, ‘ this shall be the consequence of your noncompliance.’ We must therefore observe, that the main strength and force of law consists in the penalty annexed to it.” Bl. Com. Introd. 57. It is not to be supposed that this would be omitted from such legislation as is described in this title, and any one reading it would be led to look into the body of the act to see what consequences it attaches, penal or otherwise, to noncompliance with its provisions. The fact that a title as broad as this does not expressly declare that a violation of the provisions of the act is made a penal offense is not a valid objection. This has been decided in numerous cases wherein the precise question has been duly considered, and Mansfield’s Case, 22 Pa. Superior Ct. 224, which is cited by the appellant’s counsel as. authority for a different conclusion, is not in conflict with them, as an examination-of Judge Porter’s opinion will show. Amongst these cases are Commonwealth v. Sellers, 130 Pa. 32; Commonwealth v. Silverman, 138 Pa. 642; Commonwealth v. Muir, 1 Pa. Superior Ct. 578; s. c. 180 Pa. 47; Commonwealth v. Moore, 2 Pa. Superior Ct. 162; Commonwealth v. Jones, 4 Pa. Superior Ct. 362; Commonwealth v. Beatty, 15 Pa. Superior Ct. 5; Commonwealth v. Rothermel, 27 Pa. Superior Ct. 648. The constitutionality of the act was under consideration in Commonwealth v. Finn, 11 Pa. Superior Ct. 620, and again in In re Registration of Campbell, 197 Pa. 581. In the latter case the sufficiency of the title as notice of the provision for registration was affirmed in a statement of general principles which fully covers the objection raised in this case.

The admission of the testimony of the statistical clerk, who assisted in keeping the records of the medical council and the state board of medical examiners, that he had examined them and could not find the name of R. S. Clymer therein was not prejudicial error, even though this mode of proving the contents of the record was open to objection. In view of the fact that these records are voluminous and are kept at Harrisburg, and df the great .inconvenience that would be caused by compelling their production for the inspection of the jury, we are not prepared to declare that this testimony was not admissible; but it seems unnecessary to go into a discussion of that question because, according to the doctrine of Commonwealth v. Wenzel, 24 Pa. Superior Ct. 467, and in view of the state of the record produced from the prothonotary’s office, it was not incumbent upon the commonwealth, in the first instance, to prove that the defendant had no license.

The fact that the defendant practiced medicine as alleged in the indictment was established by abundant testimony and was not in dispute. The legal question was whether he had a right to do so; to be more explicit, whether he had complied with the provisions of the act of 1893. The record produced from the office of the prothonotary, taken in connection with .the uncontradicted testimony of the deputy, showed, that none of the papers exhibited by the defendant for the purpose of registration was a license issued by the medical council of Pennsylvania, and no such license was produced on the trial, or was proved and its nonproduction accounted for. Moreover, in the affidavit filed by the defendant with these papers the clauses of the blank relative to the exhibition of a license issued by the medical council, and to compliance with the provisions of the act of 1893, were all erased, thus showing that the defendant was careful not to assert that he had any such license, or that he had complied with the provisions of the act. In view of these facts the court was justified in expressing to the juiy his opinion as to what the verdict should be. It is often permissible and sometimes advisable for a judge in his charge to the jury to express an opinion upon the facts, provided he does it fairly and does not give a binding direction as to them: Commonwealth v. Winkelman, 12 Pa. Superior Ct. 497 and cases there cited. It is even more appropriate for him to do so where the case depends as fully as this did upon questions of law and the construction of public records. We are not convinced that the judge went farther than he was warranted in doing; indeed, even if he had still more explicitly instructed the jury that the record produced from the prothonotary’s office showed that the defendant did not exhibit to the prothonotary a license issued by the medical council of Pennsylvania, we cannot say that this would have been error.

The complaint that the court should have instructed the jury as to the law of costs in case of acquittal is without merit. No such instructions were asked and it was not important for the jury to know what the law was upon that subject in the event of their finding the defendant guilty. We have no right to suppose that if the judge had charged them fully upon that subject their verdict would have been different.

All the assignments of error are overruled, the judgment is affirmed and the record is remitted to the court below to the end that the sentence be carried into effect.