* Corpus Juris-Cyc References: Statutes, 36Cyc, p. 1108, n. 46. Witnesses, 40Cyc, p. 2389, n. 85, 86, 87, 88, 89; p. 2394, n. 32, 33, 34, 35, 36; p. 2395, n. 37; Information acquired while attending person in professional capacity privileged under statute, see 28 R.C.L. 533; 5 R.C.L. Supp. 1544. The appellant, Frank Davenport, was indicted for the murder of one Artie Smith, and was convicted of manslaughter, sentenced to two years in the state penitentiary, from which he prosecutes this appeal.
The principal assignment of error is the admission of the testimony of the physicians who attended the deceased after he was wounded. The testimony of these physicians as to the nature of the wound and the cause of the death, the treatment given, etc., is objected to on the ground that it was inadmissible because privileged under section 3695, Code of 1906 (Hemingway's Code, section 6380), which reads as follows:
"All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient."
The particulars of the killing were testified to by other witnesses and the physicians who attended him after the cutting was done. *Page 125
It is the opinion of Judges ANDERSON and HOLDEN that this statute does not apply in criminal cases, and for that reason there was no error in admitting the evidence. It is the opinion of myself that the appellant is not entitled to raise the objection, and that, if it was error to admit the evidence, it is error of which he cannot complain, and therefore the judgment of the court below should not be reversed. It is the opinion of Judges McGOWEN, COOK, and SMITH that the evidence was privileged, and that it was error to admit it, that the statute applies to all kinds of legal proceedings, including criminal prosecutions, and that the judgment of conviction should be reversed because of the error in admitting this evidence.
In 28 R.C.L., p. 533, section 122, it is stated: "Nor can the privilege be invoked by one accused of crime as to information respecting the condition of his victim."
In 40 Cyc., p. 2394, par. (b), it is stated: "The privilege is that of the client or patient, and an objection to testimony as violating such privilege may be made by him, or, after his death, by his personal representative, and it has also been held that the objection may be raised by his assignee. But no other person has the right to such testimony, even after the death of the client or patient" — citing Scott v. Harris, 113 Ill. 447;Stoppel v. Woolner, 4 Ohio Dec. (Reprint) 489, 2 Cleve. Law Rep. 252; Id., 7 Ohio Dec. (Reprint) 643; McNulty's Appeal,135 Pa. 210, 19 A. 936; Smith v. Boatman Saving Bank,1 Tex. Civ. App. 115, 20 S.W. 1119; In re Hunt, 122 Wis. 460, 100 N.W. 874; 50 Cent. Digest, tit. "Witnesses," section 780.
In Pierson v. People, 79 N.Y. 424, 35 Am. Rep. 524, a murder case, wherein the defendant was charged with having produced death by administering arsenic, a physician was called to testify as to the condition of the patient, and objection was made because of the prohibition of a statute similar to our statute. The objection was overruled by the court, and this ruling was assigned *Page 126 for error. In the course of its opinion, the court said:
"The plain purpose of this statute, as in substance before stated, was to enable a patient to make known a condition to his physician without the danger of any disclosure by him which would annoy the feelings, damage the character, or impair the standing of the patient while living, or disgrace his memory when dead. It could have no other purpose. But we do not think it expedient at this time, to endeavor to lay down any general rule applicable to all cases, limiting the apparent scope of this statute. We are quite satisfied with the reasoning upon it of Judge TALCOTT, in his able opinion delivered at the General Term of the supreme court, and we agree with him `that the purpose for which the aid of this statute is invoked, in this case, is so utterly foreign to the purposes and objects of the act, and so diametrically opposed to any intention which the legislature can be supposed to have had in the enactment, so contrary to and inconsistent with its spirit, which most clearly intended to protect the patient and not to shield one who is charged with his murder, that in such a case the statute is not to be so construed as to be used as a weapon of defense to the party so charged, instead of a protection to his victim.' This objection was therefore not well taken."
In Thrasher v. State, 92 Neb. 110, 138 N.W. 120, Ann. Cas. 1913E, 882, involving a similar statute and contention, the court said:
"The physicians who attended the decedent in her last sickness were called as witnesses, and testified as to her condition at that time and the cause of her death. Their testimony was objected to on the ground that it violated the law of privileged communications. The contention is probably based on the provisions of sections 333 and 334 of the Code, which prohibit the disclosure of confidential communications to a physician, etc. The physicians testified to the physical facts discovered by them *Page 127 in their treatment of the decedent, and as to their course of treatment. We had never understood that the rule extended so far as is claimed by defendant. The testimony had no reference to him, and there was nothing for him to waive. The prohibitions of the section were not in his `favor.' So far as we are aware, the provisions of the section have never been held to apply to cases of this kind. No authorities so holding are cited. Communications between patient and physician were not privileged at common law, but depend alone upon the statute. It is to be applied only as between them, and is for the protection of the patient. 1 Wharton, Criminal Evidence (10 Ed.), section 516; Hauk v.State, 148 Ind. 238, 260 (46 N.E. 127, 47 N.E. 465); Boyle v.Northwestern Mutual Relief Ass'n, 95 Wis. 312, 322 (70 N.W. 351); Pierson v. People, 79 N.Y. 424, 433 (35 Am. Rep. 524). In Underhill, Criminal Evidence (2 Ed.), section 180, it is said: `A construction, which would operate to convert a statutory provision, intended to protect a patient from damaging or objectionable disclosure, into a protection for a person accused of the murder of the patient, cannot be admitted, nor can we believe that such was the legislative intent' — citing People v. Harris, 136 N.Y. 423 (33 N.E. 65); Hauk v. State,148 Ind. 238 (46 N.E. 127, 47 N.E. 465). We are unable to see that the same class of evidence is inadmissible in cases of this kind. There was no error in the admission of the physician's testimony."
See, also, upon general subject, 23 Am. Eng Ency. L., pp. 76, 83, and 871; 5 Wigmore's Evidence (2 Ed.), sections 2321 and 2386; 4 Wigmore's Evidence (2 Ed.), section 2196; 28 R.C.L., p. 542, section 132; 5 Miss. Digest, Ann., p. 262, section 306; 23 Am. Eng. Ency. L., p. 95.
Coming to my personal view that the admission of evidence was harmless error, I desire to say that, in my opinion, the statute confers the privilege upon the patient in every kind of legal proceeding, and, wherever the patient's *Page 128 rights are affected or those deriving rights from the patient, it would be reversible error to admit the evidence, providing the evidence showed harmful results in the trial. I desire to call attention to the language of the statute that all communications to a physician or surgeon by a patient under his charge, or by one seeking professional advice, are hereby declared to be privileged. The statute does not make the evidence incompetent. It is competent, but it cannot be introduced, because the law has conferred the privilege upon the person in whose favor the privilege exists to keep it out or to admit it according to his desires. It is a matter over which he has full and complete control. If the deceased were living, and the state was prosecuting the appellant for assault with intent to murder, instead of murder, clearly the person assaulted may take the witness stand and testify about the matter, and could introduce the physician who attended him to show the nature and character of the wound, where it would tend to show a dangerous assault, or tend to show a purposed striking near a vital organ. Manifestly the defendant on trial could not object to the evidence because it is not made incompetent and because he has no kind of privilege or protection afforded by the statute. The statute intends merely to protect the patient from exposure by disclosures made to his physician or from evidence derived from such disclosures. In other words, the defendant in the present case had no kind of rights growing out of the statute. It was not for him to be heard upon it. As to him, the evidence was competent and admissible, and no right of his was violated by the admission of the evidence. It is true that this court had held that the waiver died with the patient, and that the court ought not to admit the evidence, but, if it does admit it, it is like any other evidence which does not in legal contemplation harm the litigant. This principle is illustrated by the cases of Newcomb v. State, 37 Miss. 383, 2 Mor. St. Cas. 1303, Head v.State, 44 Miss. 731, 2 Mor. St. Cas. 1700, White v. State,52 Miss. 216, *Page 129 where it was held that the right to decline to answer on the ground of self-incrimination is a privilege personal to the witness and that the party calling him cannot claim the privilege for him or in his behalf should he choose to waive it. See, also,Decell v. Lewenthal, 57 Miss. 331, 34 Am. Rep. 449; Rocco v. State, 37 Miss. 357, 2 Mor St. Cas. 1280. Consequently we cannot reverse the judgment for admitting such evidence.
There is no merit in the other assignments of error. Calicoat v. State, (Strickland v. State), 131 Miss. 169, 95 So. 318.
The judgment of the court below will therefore be affirmed.
Affirmed.