Wolf v. People

• Docket Number: 15666.
• Decision Date: 03 November 1947
• Citation: 187 P.2d 926,117 Colo. 279
• Parties: WOLF et al. v. PEOPLE.
• Court: Colorado Supreme Court

187 P.2d 926

117 Colo. 279

WOLF et al. v. PEOPLE.

No. 15666.

Supreme Court of Colorado, en Banc.

November 3, 1947

Rehearing Denied Dec. 8, 1947.

Error to District Court, City and County of Denver; William A Black, Judge.

Julius A. Wolf and A. H. Montgomery were convicted of conspiracy to commit abortion, and they bring error.

Affirmed.

See also 187 P.2d 928.

HILLIARD J., dissenting.

Where the prosecution failed to call a witness not indorsed on the information and defendants were not misled under a record showing that they had all the essential information about the witness that the prosecution had, defendants' requested instruction on such failure of the prosecution to call the witness was properly refused.

Philip Hornbein and Donald M. Shere, both of Denver, for Julius A. wolf.

F. E Dickerson, William F. Dwyer and Wm. E. Doyle, all of Denver for A. H. Montgomery.

H. Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

BURKE Chief Justice.

Plaintiffs in error, hereinafter referred to by name, were convicted of conspiracy to commit abortion and each was sentenced to the penitentiary for a term of one year to eighteen months. To review that judgment they prosecute this writ. They were represented below and here by separate counsel. Wolf assigns 17 errors and Montgomery 16. Generally they are duplications and separate consideration is unnecessary. Some require no examination and others are so interrelated it is useless to take them up separately. Those deserving of notice may properly be thus classified and considered: 1--The seizure and introduction in evidence of Exhibits A and C; 2--The overruling of motions for severance; 3--The giving and refusal of certain instructions. Even these are so related that the disposition of one will leave little to be said as to the others. All motions and objections necessary to save the points were presented and overruled.

Wolf was a regularly admitted and practicing physician and surgeon whose professional activity consisted principally in the treatment of diseases of women, obstetrics, and pelvic and abdominal surgery. Montgomery was a duly licensed chiropractor. The particular offense charged concerned an abortion on one Mildred Cairo. Representatives of the district attorney's office, having no information concerning that offense, but possessed of definite information concerning a similar one committed on another woman and the connection of Wolf and Montgomery therewith, went to the office of Wolf without a warrant and took him into custody and there they took possession of said Exhibits which were his day books of 1944 and 1943 up to the time of the arrest. They were records of patients who consulted him professionally. So far as Mildred Cairo was concerned they disclosed only her name, address and telephone number.

1. It is contended that the seizure and use of these Exhibits constituted reversible error. First, because it violated the fourth paragraph of Section 9, chapter 177, C.S.A. '35, which provides that the physician 'shall not, without the consent of his patient, be examined as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient; * * *.' There are two answers to this contention. First, the information contained in the Exhibits was not 'necessary to enable him to prescribe or act for the patient,' and second, this act is solely for the protection of the patient, not the physician. Hanlon v. Woodhouse, 113 Colo. 504, 508, 160 P.2d 998; 28 R.C.L. sec. 132, p. 542. Mildred Cairo testified in this cause, was fully cognizant of all the proceedings and had every opportunity to object to any disclosures made concerning her. Since no intimation to the contrary came from her lips throughout the trial her consent must be assumed for the purpose of this case.

The second objection is that the seizure and introduction of Exhibits A and C was in violation of Section 7, Article II of the constitution which forbids unreasonable search and seizure and forbids any such search and seizure without a warrant, and Section 18 of Article II, Id., which provides 'that no person shall be compelled to testify against himself in a criminal case.' This identical contention was before this court over twenty years ago and decided to the contrary. The opinion was by the court en banc, one Justice not participating, all the others concurring, Massantonio v. People, 77 Colo. 392, 236 P. 1019. Numerous cases on both sides of the controversy were there cited. That decision has never been disturbed through the years, but has been frequently followed and reaffirmed. Roberts v. People, 78 Colo. 555, 243 P. 544; Bills v. People, 113 Colo. 326, 157 P.2d 139. Among the decisions of sister states handed down...