Freeburg v. State
| Decision Date | 01 November 1912 |
| Docket Number | 17,529 |
| Citation | 138 N.W. 143,92 Neb. 346 |
| Parties | GUST FREEBURG v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Phelps county: HARRY S. DUNGAN JUDGE. Reversed.
REVERSED.
James I. Rhea, for plaintiff in error.
A. J Shafer, contra.
The plaintiff in error, Gust Freeburg, hereafter designated as the defendant, was complained against in the police court of the city of Holdrege, July 5, 1911, and was charged with the violation of an alleged ordinance in that city on July 4, 1911. The plaintiff charged that the said Gust Freeburg, "on or about the 4th day of July, A. D. 1911, in the county last named (Phelps), and within the corporate limits of the city of Holdrege, then and there being, did then and there unlawfully become drunk, and was then and there found in a state of intoxication and drunkenness, contrary to section 44 of ordinance 45, of the Compiled and Revised Ordinances of the city of Holdrege." The defendant was found guilty in the police court, and sentenced to pay a fine of $ 10 and costs. He appealed to the district court, and was there convicted and sentenced to pay a fine of $ 1 and costs. He brings the case here for review.
Upon that point there seems to be a conflict of evidence, but there is no conflict touching the fact that the defendant was going home with a Mr. Levine, and the city marshal started to arrest him, and the defendant and Levine begged him not to make the arrest. The city marshal struck the defendant over the head with his revolver, but claims in justification that the defendant and Levine objected to the arrest and finally resisted. At the time this happened they were near Levine's tailor shop, and Levine said he wanted to go in his shop to get his coat, and then they would go home together. Freeburg and Levine denied making any resistance to the arrest, and it does not appear Freeburg was in any way offensive in his conduct.
Dr. S. F. Sanders was called by the county attorney, and testified as a witness on behalf of the state, and over the objection of counsel for the defendant. He testified that he was a practicing physician in the city of Holdrege, and that on the afternoon or evening of July 4, 1911, he was called upon to dress certain wounds from which the defendant was suffering; that he found the defendant at the tailor shop of Mr. Levine, and had him removed to his (Sanders') office, which was near by, and where he treated him for the injuries which he had received. He gave as a reason for believing that the defendant was intoxicated that his breath smelled of beer, and immediately after his wounds were dressed the defendant said, "I guess it is all right." The defendant had also said something else which the witness testified he was unable to remember. The fact that Sanders was a doctor, and that he had been called to attend the defendant, and testified to his opinion concerning the condition of the accused as to intoxication, would give his testimony great weight with the jury, because of the confidential relation which he sustained to the defendant, and because as a doctor his knowledge would be supposed to be superior to that of other men.
Section 333 of the code of civil procedure provides: "No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication, properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline."
The foregoing section would seem to justify the exclusion of the testimony of Dr. Sanders. We think that his testimony was clearly prejudicial. Bryant v. Modern Woodmen of America, 86 Neb. 372, 125 N.W. 621; Sovereign Camp, W. O. W., v. Grandon, 64 Neb. 39, 89 N.W. 448; Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709; Gartside v. Connecticut Mutual Life Ins. Co., 76 Mo. 446, 43 Am. Rep. 765; Masonic Mutual Benefit Ass'n v. Beck, 77 Ind. 203; Heuston v. Simpson, 115 Ind. 62, 17 N.E. 261; Grattan v. Metropolitan Life Ins. Co., 92 N.Y. 274.
In the last named case the doctor was asked, "What opinion did you form, based on the general sight of the man, before you made an examination, or before you had any conversation with him?" The court held that the question was properly excluded as privileged within the statute. In the opinion it is said: "We have distinctly held in such a case that the communication to the physician's sense of sight is within the statute, and as much so as if it had been oral and reached his ear."
The Missouri statute declares a physician or surgeon incompetent to testify ...
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