State v. Miller

Parker, J.

The defendant was charged with the commission of a gross misdemeanor, in that he took indecent liberties with the person of a girl under the age of eighteen years, in violation of Rem. Code, § 2442. Trial in the superior court, sitting with a jury, resulted in a verdict of guilty, upon which judgment was rendered, fining the defendant and sentencing him to imprisonment in the county jail, from which he has appealed to this court.

It is contended by counsel for appellant that the evidence was not sufficient to sustain the verdict and judgment, and that the trial court should have so decided as a matter of law, in accordance with motions timely made in that behalf. A careful review of the evidence convinces us that this contention has to do, in its last analysis, only with the credibility of witnesses, whose stories, if believed by the jury, were sufficient to support the conviction. It therefore seems quite plain to us that the trial court did not err in refusing to sustain the challenge to the evidence made by counsel for appellant.

It is next contended in appellant’s behalf that the trial court erred to his prejudice in permitting a physician to testify, over the objection of his counsel, that appellant had the disease known as gonorrhoea, prior to and near the time of the alleged commission of the offense, the physician having acquired information of that fact in attending appellant as his patient and treating him for that disease. This testimony was introduced by the prosecution as tending to show that appellant had communicated that disease to the girl, there being other testimony tending to show that she had become afflicted with it about the time of the alleged commission of the offense. The physician was asked and answered, over the objection of counsel for appellant, as follows:

“Q. I will ask you doctor if you treated Frank Miller at that time? A. Yes, Miller came to me, and I treated him for gonorrhoea. I gave him two prescriptions. That is all I saw of him nntil he came in and paid me. Q. That was on the 21st day of June, 1917? A. Yes, sir.”

The offense was committed, if at all, on about June 25, 1917. The objection to the receiving of this evidence was, in the trial court, and is here, rested by counsel for appellant upon the following provisions of our civil and criminal practice statutes:

“A regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient.” Rem. Code, § 1214.

“The rules of evidence in civil actions, so far as practicable, shall be applied to criminal prosecutions.” Rem. Code, § 2152.

Counsel for the prosecution rely upon the following provisions of the criminal practice statute:

“Witnesses competent to testify in civil cases shall be competent in criminal prosecutions, bnt regular physicians or surgeons, clergymen or priests, shall be protected from testifying as to confessions, or information received from any defendant, by virtue of their profession and character. ■ . . . ” Rem. Code, § 2147.

It seems clear to us that the above quoted portion of Rem. Code, § 1214, prescribes a rule of evidence in civil cases which is made applicable to criminal prosecutions by Rem. Code, § 2152; unless, as argued by counsel for the prosecution, § 2147 evidences a legislative intent to the contrary. The argument seems to be that, since § 2147 of our criminal practice statute is an express provision protecting the physician from testifying as to the information received by virtue of his profession from his patient and makes no provision for the protection of the patient as to his physician testifying as to information so received, there is thereby evidenced a legislative intent to not make the rule of evidence prescribed by the above quoted portion of § 1214 applicable to criminal prosecutions. We cannot agree with this contention. It seems to us that §§ 1214 and 2147, Eem. Code, are intended to protect two different classes of persons, and are in nowise in conflict with each other. The former protects a patient from having his physician disclose upon the witness stand any information acquired in attending him as such patient which was necessary to enable the physician to prescribe for him; while the latter has reference to the protection of the physician only. That is, in so far as the patient’s rights are concerned, he has the right of election under §§ 1214 and 2152 in both civil and criminal cases; and in so far as the physician’s rights are concerned, he has the right of election under § 2147 in criminal cases. It seems to us highly improbable that the legislature would accord to a patient a higher degree of protection in civil actions than in criminal actions, that is, a higher degree of protection to his right of property than to his right of liberty. The policy of such statutes, of which there are many in other states similar to ours, manifestly is for the benefit of the patient, to the end that he may with safety freely disclose his ailments to a physician to the end that they be properly treated. We are of the opinion that the trial court fell into error in allowing the physician to testify as he did, over the objection of counsel for appellant.

Some contention is made by counsel for the prosecution that the privilege of appellant to prevent his physician from testifying was waived by appellant’s voluntary disclosures to others that he was afflicted with the disease of gonorrhoea, near the time of the alleged commission of the offense. These alleged disclosures rested entirely upon the testimony of other witnesses, and not upon anything that appellant or his counsel said or did at the time of the trial. Even the testimony of these witnesses tends to show that appellant, in making his admissions to them, denied having the disease at the time of the alleged commission of the offense. However that may be, we think a patient’s consent to his physician’s testifying cannot be shown solely by the testimony of witnesses concerning the patient’s previous admissions or disclosures. No decision has come to our attention holding that such is the law. It seems to us that the consent must be evidenced to the trial court by some word or act of the patient at the time of the trial, so that the trial court can conclusively know, without depending upon the veracity of third persons as witnesses, that the patient has waived the privilege accorded to him by the statute. We conclude, therefore, that the record does not properly show that appellant waived the privilege of having his physician refrain from testifying.

It is further argued that there is nothing in the physician’s testimony which discloses any communication made by appellant to the physician, or information acquired by the physician, when he prescribed for appellant and treated him for the disease. It is true that there is nothing in the testimony of the physician indicating what conversation took place between him and appellant as his patient; but manifestly there is enough in his testimony to call for the conclusion that he acquired the information as to appellant being afflicted with the disease when appellant went to him for treatment. In Edington v. Mutual Life Ins. Co., 67 N. Y. 185, 194, Judge Miller, speaking for the court, made the following pertinent observations touching a similar contention:

“The point made that there was no evidence that the information asked for was essential to enable the physician to prescribe is not well taken, as it must be assumed from the relationship existing that the information would not have been imparted except for the purpose of aiding the physician in prescribing for the patient. Aside, however, from this, the statute in question, being remedial, should receive a liberal interpretation, and not be restricted by any technical rule. When it speaks of information it means not only communications received from the lips of the patient but such knowledge as may be acquired from the patient himself, from the statement of others who may surround him at the time, or from observations of his appearance and symptoms. Even if the patient could not speak, or his mental powers were so affected that he could not accurately state the nature of his disease, the astute medical observer would readily comprehend his condition. Information thus acquired is clearly within the scope and meaning of the statute. ’ ’

We are of the opinion that this record calls for the conclusion that the physician acquired the information as to which he testified when he treated appellant; that such information was necessary to enable him to treat appellant; and that the court erred to appellant’s prejudice in permitting the physician to testify over the objection of his counsel.

Some contention is made by appellant’s counsel that the court erred in giving and refusing to give certain instructions. We think there was no prejudicial error in this regard.

The judgment is reversed because of the error of the trial court in admitting the physician’s testimony over the objection of counsel for appellant, and he is granted a new trial.

Mount, Fullerton, and Main, JJ., concur.