Davenport v. State

• Decision Date: 01 February 1926
• Docket Number: 25229
• Citation: 143 Miss. 121,108 So. 433
• Court: Mississippi Supreme Court
• Parties: DAVENPORT v. STATE. [*]

108 So. 433

143 Miss. 121

DAVENPORT v. STATE. ^[*]

No. 25229

Supreme Court of Mississippi

February 1, 1926

(In Banc.)

WITNESSES. In trial for unlawful killing admitting testimony of physician, who attended deceased, with reference to condition of his wounds, held not reversible error (Code 1906, section 3695, Hemingway's Code, section 6380).

Where a person is on trial for the unlawful killing of another, it is not reversible error, under section 3695, Code of 1906 (Hemingway's Code, section 6380), to admit the testimony of the physician who attended the deceased with reference to the condition of his wounds.

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Suggestion of Error Overruled May 24, 1926.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS Judge.

Frank Davenport was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed. Suggestion of error overruled.

Dudley Reed and C. M. Murphey, for appellant.

The expert testimony of Doctors Gamble and Higdon was privileged. The deceased was the patient and under the charge of these two physicians. By their testimony alone the proximate cause of the death of deceased was proved. The court erred in admitting the testimony of these two physicians over the objection of appellant. See section 3695, Code of 1906 (section 6380, Hemingway's Code); McCaw v Turner, 88 So. 705.

Our contention here is that upon the death of the victim the lips of his physicians are sealed and that they cannot be allowed to disclose information coming to them in their professional capacity while the relation of physician and patient exists.

That the privilege was applicable in criminal as well as civil cases under the New York statute, somewhat similar to ours, was held in People v. Murphy, 101 N.Y. 126 Am. Rep. 661. For the general rule see 40 Cyc., p. 2389. Professor Wigmore recognizes that the privilege is applicable in criminal as well as in civil cases. 4 Wigmore, 3356.

This court is not the arbiter nor the judge of whether our statute is wise or ill-advised. The legislature has adopted it and it remains but for the court to give it effect. This statute does not need any construction, it needs only to be enforced. Hamner v. Lumber Co., 100 Miss. 349 at 417; State v. Trailor, 100 Miss. 558.

J. L. Byrd, Assistant Attorney-General, for the state.

Our court has never, so far as we have been able to determine, passed upon the question as to whether or not the privilege communication statute (section 3695, Code of 1906, section 6380, Hemingway's Code) applies in the prosecution of a person for a crime where the physician testifies about the condition, etc., of the victim of that crime.

The first question which we think presents itself is whether or not the appellant had a right to raise that question. As far as he was concerned no right of his was violated. He had no connection with the doctors and their patients. He has no interest in seeing the statute enforced except to the extent that it probably would close the mouths of witnesses against him in the case. We submit that the doctors did not claim the privilege, the court did not claim the privilege for them, and we do not believe that the appellant had a right to claim it inasmuch as he had no interest whatever in the prohibition of the statute. 28 R. C. L., p. 533. A leading case is Pierson v. People, 79 N.Y. 424, 35 Am. Rep. 524, a murder case wherein the defendant was charged with having produced death by the administration of arsenic. A physician was called to testify as to the condition of the patient, etc., just as in the present case. An objection was made because of a prohibition of a statute similar to our statute. The objection was overruled by the court and the case affirmed on appeal. See, also, Thrasher v. State, 92 Neb. 110, 138 N.W. 120.

Both of these cases hold that the statute was never intended to bar a physician from testifying as to the condition of a person who was a victim of a crime, and to so hold would, we submit, be utterly at variance with all the principles of reason, justice, and right. It has been the custom in this state from time immemorial to introduce the doctor in homicide cases, and this is the first time it has ever been questioned, and the court has never held that this testimony was incompetent. We submit, therefore, that in view of the foregoing authorities, the objections of appellant to the doctor's testimony were not well taken and the court was correct in overruling the objections; and in conclusion, we refer the court to 1 Wharton's Criminal Evidence (10 Ed.), p. 1064; State v. Grimmell (Iowa), 88 N.W. 342; Underhill on Criminal Evidence (3 Ed.), par. 298; Hauk v. State (Indiana), 46 N.E. 127.

ETHRIDGE, J. ANDERSON, J. HOLDEN, J., concurs. MCGOWEN, J., dissenting. SMITH, C. J., and COOK, J., concur in the dissenting opinion.

OPINION

ETHRIDGE, J.

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.

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 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...