People v. Long

CARTER, J., Dissenting.

I dissent.

In my opinion the giving of the instruction to the jury: “that you may regard the testimony of an expert as merely advisory, and you are instructed that you may disregard altogether the testimony of such expert, and you may form your own conclusions from all the evidence submitted to you”, constituted prejudicial error and justifies a reversal of this case.

The majority opinion states:

“There can be no doubt that the deceased was suffering from a heart affected with a mitral stenosis—that is, the mitral valve of the heart had become infected and had become calcified so as to reduce the diameter of the orifice of the valve. The medical witnesses testified that this condition as it progresses results in the blood's passing through the *609 valve with increased difficulty. As a result, the heart must pump harder and faster, and to do this becomes enlarged. The heart becomes decompensated when it is unable to meet the increased load. When this condition occurs, death ensues. They also testified that there are various visual symptoms of a decompensating heart, such as shortness of breath and discoloration. One of the main questions involved at the trial was whether the heart condition of deceased had progressed sufficiently so that the added burdens of pregnancy and childbirth might cause the heart to decompensate. ’'

In other words, the principal issue in the trial of this ease and the sole foundation stone upon which the defense was based, namely, that the performance of the abortion was necessary to preserve the life of the deceased, was of necessity, and in the very nature of things, predicated solely upon expert testimony. Common sense as well as legal reasoning dictates that no one without expert knowledge and skill in the subjects of anatomy and medical science would be qualified to testify on this subject, and it has been the settled law of this state for decades that when the sole issue in a case is the subject of expert knowledge of medical science, that such issue must be decided solely upon the testimony of those learned in the practice of medicine and surgery. (Perkins v. Trueblood, 180 Cal. 437 [ 181 Pac. 642 ]; Arnold v. Hopkins, 203 Cal. 553 [ 265 Pac. 223 ]; Houghton v. Dickson, 29 Cal. App. 321 [ 155 Pac. 128 ] ; Dameron v. Ansbro, 39 Cal. App. 289 [ 178 Pac. 874 ]; Pearson v. Crabtree, 70 Cal. App. 52 [ 232 Pac. 715 ]; William Simpson Const. Co. v. Industrial Acc. Com., 74 Cal. App. 239 [ 240 Pac. 58 ]; Ingamells v. Goodfellow, 109 Cal. App. 62 [ 292 Pac. 162 ]; Roberts v. Parker, 121 Cal. App. 264 [ 8 Pac. (2d) 908 ].)

In a very able and exhaustive opinion written by my learned associate, Mr. Justice Curtis, in the case of Pearson v. Crabtree, supra, when he was a member of the District Court of Appeal of the Second Appellate District, this very sound proposition of law was enunciated, and its soundness or the justness of its application to cases of this character has never been questioned. In that case the plaintiff sued the defendant, a physician, for malpractice and recovered a verdict in the trial court. The court refused to give the following instruction requested by the defendant:

*610 “The court instructs you that in considering whether the defendant in his examination, diagnosis, treatment and care of plaintiff’s injured limb exercised ordinary care and skill, you cannot set up a standard of your own, but must be guided in that regard solely by the testimony of physicians; and if you are unable to determine from the testimony of the physicians introduced as experts, what constitutes ordinary care and skill under the circumstances of this case, then there is a failure of proof upon the only standard for your guidance, and the evidence is therefore insufficient to warrant a verdict for the plaintiff.” But on its own motion gave the following instruction:

“You are instructed that the opinions of the doctors who have testified in this case as experts are merely advisory, and you are not bound to accept such opinions as true. You should accord to such opinions such weight as from all the facts and circumstances in the case you may believe they are entitled to receive; or you may altogether disregard such opinions in so far as you may believe from all the facts and circumstances in the case that such opinions are unreasonable.” In that case Mr. Justice Curtis stated:

“The authorities from other jurisdictions appear to be in accord upon this question with the rulings of the supreme court of the state of Colorado and that of our own state. It necessarily follows, therefore, if this instruction refused by the court correctly stated the law, then it was prejudicial error for the court to give the second instruction above set out, which it gave upon its own motion. For in this second instruction the court told the jury that they might disregard altogether the opinions of the experts testifying in the case, if, from all the facts and circumstances in the case, they believed that such opinions were unreasonable. In other words, the court in effect instructed the jury that if there were facts and circumstances in the case, testified to by lay witnesses, which the jury believed and which rendered the opinions given in the case by expert witnesses unreasonable, then the jury were at liberty to reject altogether the opinions of the experts. As we have already noted, such is not the accepted rule, and to so instruct the jury was highly prejudicial to the rights of the appellants. . . . We, therefore, are of the opinion that the rule of law set forth in the above instruction which the court refused to give was applicable to the issues *611 in this case, and it was therefore error on the part of the court, prejudicial to the rights of the defendants, to give the instruction which it did and whereby it instructed the jury that the opinions of the doctors were merely advisory and that the jury were not bound to accept them, but might disregard them altogether if from all the facts and the circumstances in the case they believed them unreasonable.

“Judgment is reversed.”

The case of Pearson v. Crabtree, supra, has been uniformly followed in this and other jurisdictions where the common law prevails and is recognized as the settled law of this state.

There is little doubt, in my opinion, that if the case at bar were a civil action in which a judgment had been recovered by a plaintiff upon the same factual situation as that disclosed by the record in this case, and such an instruction had been given as the one quoted in the majority opinion in this case, this court would have no hesitancy in reversing such a judgment upon the authority of the ease of Pearson v. Crabtree, supra, and Hirshfeld v. Dana, 193 Cal. 142 [ 223 Pac. 451 ], upon the ground that such instruction was prejudicially erroneous and probably resulted in a miscarriage of justice.

To hold that the giving of such an instruction as the one given in the case at bar is prejudicial in a civil case and not in a criminal ease, is to my mind a holding in effect that life and liberty are of less concern to human beings than property. I am opposed to any such concept and I firmly believe that the application of the law should be more rigid and more strictly construed in the protection of the lives and liberties of our people than in the protection of their property rights.

There can be no escape from the conclusion that the jury in the case at bar were plainly told by the trial judge not only that they could regard the testimony of an expert as merely advisory, but that they may disregard altogether the testimony of such expert, and form their own conclusions from all the evidence submitted to them. To say that such an instruction did not deprive the defendant of the benefit of the expert testimony submitted by both the prosecution and the defense is stating an obvious contradiction. If such an instruction can be cured by the application of section 4% of article VI of the Constitution, then in my opinion it must necessarily follow that a defendant in a criminal ease is not entitled as a matter of legal right to have the jury instructed on the law *612 applicable to the facts of the ease presented to the trial court during the trial of his case and that this section of the Constitution can be resorted to for the purpose of depriving a person of the equal protection of the law guaranteed by the 14th Amendment to the Constitution of the United States.

In my opinion, the effect of the giving of the above-mentioned instruction was to deprive the defendant of the fair and impartial trial guaranteed by the Constitution and laws of this state and that the judgment and order denying him a new trial should be reversed.

Rehearing denied. Carter, J., voted for a rehearing.