64 P. 23 | Kan. | 1901
Lead Opinion
The opinion of the court was delivered by
The defendant was prosecuted in the court below under chapter 68 of the Laws of 1870 (Gen. Stat. 1897, ch. 100, §§ 892, 393; Gen. Stat. 1899, §§2302, 2303), entitled “An act to protect the people from empiricism, and to elevate the standing of the medical profession.” Section 1 of that act contains a proviso in the following words :
“Provided, that in all cases when any person has been continuously engaged in the practice of medicine for a period of ten years or more, he shall be considered to have complied with the provisions of this act.”
“A person of good moral character, who had practiced medicine continuously for ten years or more
Counsel for the defendant insists that the above quotation from the syllabus of the case, while correct as an abstract statement of the law, is not applicable to the defendant, under the facts sought to be proved in his behalf as above set forth, because his client, having practiced without the state of Kansas during the period of ten years, cannot be said to be one who has been engaged “for ten years in violation of law.” In the absence of proof to the contrary, it will be presumed that the laws of Nebraska are the same as our own. Besides, it is known of all men that throughout the civilized world schools, colleges, dispensaries, hospitals and institutions for clinical instruction are maintained at public and private expense for the education of those men and women to whom is committed the responsible duty of ministering to the health and endeavoring to prolong the life of human beings. All, or nearly all of these institutions, issue certificates or diplomas reciting the term and course of study which has been pursued by the student therein. Those colleges whose curriculum includes a complete course of those studies which are regarded as requisite for a physician and surgeon to pursue do uniformly issue to one who has completed such course, and exhibited proficiency therein, a diploma reciting such facts, and evidencing that by reason thereof the graduate has been made a doctor of medicine.
In the case at bar the defendant does not claim to have attended any of these schools of special learning,
Complaint is made that the court below erroneously placed the burden of proof upon the defendant. The statute provides:
2. Burden of proof on defendant. "It shall be unlawful for any person . . . who has not attended two full courses of instruction and graduated in some respectable school of medicine, either of the United States or of some foreign country, or who cannot produce a certificate of qualification from some state or county medical society, . , . to practice medicine in any of its departments for reward or compensation.”
“The statutes of Kansas require that, before any person can legally practice medicine for compensation in this state, he must have attended two full courses pf instruction and graduated in some respectable school of medicine, either of the United States or of some foreign country, or be able to produce a certificate of his qualification from some state or county medical society. The burden of introducing some evidence tending to prove such qualification is on the defendant.”
Exceptions were taken to the refusal of the court to instruct the jury to return a verdict of acquittal, and to the foregoing instruction given by the court to the jury. As to the refusal of the court to instruct the jury to return a verdict of not guilty, it may be assumed that such an instruction is justifiable where there is an entire failure of evidence on the part of the state to prove the guilt of the defendant; still we
A more important question is presented by the instruction of the court, which substantially changes the burden of proof in this class of cases. It is scarcely necessary to announce that ordinarily the burden of proving the guilt of the defendant and every essential ingredient thereof, beyond a reasonable doubt, is upon the state, and the accused stands on the presumption of his innocence until a complete case is made against
‘ ‘ Where the means of proving the negative are not within the power of the party alleging it, but all the proof on the subject is within the control of the Opposite party, who, if the negative is not true, can disprove it at once, then the law presumes the truth of the negative averment from the fact that such opposite party withholds or does not produce the proof that is within his hands, if it exists, that the negative is not true.” (5 A. & E. Encycl. of L., 2d ed., 42, n. 1.)
Without giving unqualified assent to that rule, we remark that a failure of justice would usually result if the state were required to prove, in a case like the present, that the defendant had not attended two full courses of instruction and graduated at some respectable medical college in this or some foreign country, or that he could not produce a certificate from some state or county medical society; for where a person had determined to engage in the unlawful practice of medi
“One of the leading presumptions in our law is, that what is common in general belongs also to the particular ; this is a prima facie presumption, and the party who would resist its force must show that, in the particular instance, the fact is otherwise.” (Bish. Stat. Cr. § 1051.)
“From this it follows, that if the law forbids the ’mass of the community to sell intoxicating liquor, ibut grants license to some particular individuals to 'sell it, then, if some one person is indicted for making -an unlicensed sale, the presumption that what is com- - mon in general belongs likewise to the particular stands as prima facie proof, and the defendant, if he has a license, must show it. This conclusion of legal reasoning is aided by the further consideration that, since the averment is a mere negative one, and, if it is not true, the defendant has in his own possession the evidence to show the truth, the orderly and convenient administration of justice is promoted, while no harm is done to the individual by casting the burden on him.” (Bish. Stat. Cr. §1051.)
Cases for the sale of liquor and drugs and medicines and the operation of ferries and the like, without license, present features which are analogous to the case under consideration, and in most of the states the courts have held that it is not necessary for the prosecution to prove that the defendant had no license. Different reasons are assigned for the establishment of this exceptional rule. In several states a labored effort is made to prove that the rule is not exceptional in its nature, but that it accords with the ordinary procedure in criminal cases. An attempt to reconcile the reasons thus given would be fruitless. Indeed, most of these cases extend the rule much beyond the point we regard as justifiable. For instance, in this state liquor is not allowed to be sold except upon a druggist’s permit, which is granted in the county where the business is to be transacted, and the fact of issuing the permit is made a matter of public record in the office of the probate judge, which is held at the county-seat where the court meets and generally in the same building where it convenes. Now, the rea
In other words, where evidence to prove the negative averment is not peculiarly within the knowledge of the defendant, but is also within the knowledge and control of, or, upon reasonable effort and by the exercise of proper diligence, may be secured by, the state, then the prosecution is bound to produce such evidence, and, failing to do so, the defendant ought to be acquitted. Applying this distinction to the case at bar, it will be readily seen that it might well be beyond the power of the state to prove any of the negatives alleged in the information in this case. The facts and the evidence in relation thereto are, and of necessity must be, peculiarly within the knowledge and under the control of the defendant, while, as above remarked, his desire to stand well with his patrons and with the community generally would naturally prompt him to submit evidence to remove the cloud cast upon his professional reputation by such an inquiry; and, therefore, to require him to
For these reasons there was no error in the charge of the trial court that the defendant was required to produce some evidence tending to show his qualifications. (Bish. Stat. Cr. §§ 1051, 1052, 1053, and cases cited; Wheat v. The State, 6 Mo. 455; People v. Nyce, 34 Hun [N. Y.] 298; 5 A. & E. Encycl. of L., 2d ed., 42, supra, and cases cited; Under. Crim. Ev. §24, and cases cited; Black, Intox. Liq. § 507, and cases cited ; The State v. Crow, 53 Kan. 663, 37 Pac. 170.)
As this case must be reversed for reasons hereinafter appearing, and a new trial ordered, it may not be improper to remark that if the defendant should show that he had attended two full courses of instruction and graduated in some medical college of this or some foreign country, then, in the absence of some evidence raising a question about it, the presumption would be that such college was respectable. To avoid misunderstanding, however, with reference to the facts of this particular case, we think the court would have been justified, for reasons appearing on the face of the documents themselves, in excluding from the jury the paper which counsel for the defense calls a diploma, issued by the so-called Independent Medical College of Chicago, and the other paper purporting to have been issued by a physio-medical society in Illinois (which latter was excluded), because neither of these papers proves, nor tends to prove, that the defendant had attended any course of instruction in either institution, or had graduated at either, and because neither of them can be regarded as a diploma, nor as such certificate as is contemplated by our statute.
After the jury had been out of court for several hours in considering their verdict, they returned and re
3. Erroneous instruction. “I say to you that under the law and the evidence, for the purposes of this case, the defendant was not at the time charged in the information legally qualified to practice medicine for compensation in this state, and, if he did so practice medicine at the times and places and for the persons alleged in the information, it is your duty to convict him, and to consume no time speculating on the question of whether he might have been qualified to practice medicine under the st¡atute, because, I again say to you, that, so far as the evidence in this case discloses, he was not so qualified, and it is your duty to find that any practicing that he may have done for sick persons for compensation as alleged in the information was done illegally, and you should convict him therefor by your verdict.”
This was tantamount to an instruction to find the defendant guilty, and, if not in words, certainly in effect, nullified the original instructions of the court relating to reasonable doubt. The general rule that all the instructions given by the court to the jury in a particular case are to be considered together can have no application here, for by this instruction the court directly settled for the jury the only question about which any doubt could have remained in their minds, and pointedly directed them that, if they believed the evidence, as to which there was no controversy, upon the question as to whether the defendant had practiced medicine for compensation, they must find the defendant guilty, and that-speedily. Thus the court disposed of every presumption in the defendant’s favor and indirectly withdrew from the jury’s consideration certain evidence which had been previously admitted. We do not believe that an instruction to find the defendant guilty is justifiable in
“Ordinarily, a jury might well draw such an inference from such facts ; but the court below says that, in effect, they are compelled to draw such an inference, and this, in our opinion, is an unauthorized assumption by the court of a duty that belonged exclusively to the jury. From the proven facts, the jury, not the court, must find that the accused converted the money to his own use. In this case they might well have found him guilty from the facts proven, if they had been left at liberty to weigh the value of these facts, as well as any others necessary to prove the guilt of the accused."
It may not be absolutely certain that this instruction did mislead the jury, but we cannot be positive that it did not do' so, and, as a majority of this court regard it as clearly erroneous, a reversal of the judgment must be ordered and -the case remanded for a -new trial.
Dissenting Opinion
(dissenting) : I concur in the judgment of reversal and in all the points decided except the one which places the onus probandi upon the defendant. This decision marks a radical departure from the well-established rule of criminal procedure in Kansas. From The Territory of Kansas agt. William S. Reyburn, McCahon, 134, and Carl Horne v. The State of Kansas, 1 Kan. 47, through every volume of our reports up to the present case, the burden of proof has been held to be upon the prosecution. The accused has been presumed to be innocent of the offense charged, and it has been uniformly ruled that he could stand on this presumption and withhold all proof until the prosecution had made out a complete case against him. The statute in plain language requires
It is true that there are cases which hold that, as to substantive matters of exemption or immunity, the burden is on the defendant; but even in those cases he is not called on to prove anything, and the burden is never shifted to him until all the elements of the offense charged have been proved by the state. Where the presumption of innocence is a matter of statute, it cannot be taken away or the burden of proof shifted to the defendant, except by a change of the statute itself. In the matter of the sale of intoxicating liquors, the burden was held to be on the state to prove
In my view, if a change of the law as to the burden of proof is necessary, it should be accomplished by the legislature instead of by the court. Under