Jenkins v. State
| Decision Date | 21 February 1927 |
| Docket Number | 26238 |
| Citation | 146 Miss. 339,111 So. 433 |
| Court | Mississippi Supreme Court |
| Parties | JENKINS v. STATE. [*] |
(In Banc.)
WITNESSES. Physician's privilege against testifying as to facts learned in employment may be waived in criminal case; consent of grandmother in loco parentis held waiver under statutes so as to make admissible physician's testimony as to condition of twelve year old rape victim (Hemingway's Code, section 6380 [Code 1906, section 3695]).
Under section 6380 of Hemingway's Code (section 3695, Code of 1906), making the evidence of a physician as to matters learned in his employment privileged, at the option of the patient the privilege may be waived in a criminal prosecuton although the child in whose favor the privilege exists is only twelve years of age, if it be for her interest to do so. The facts in this case examined, and held to constitute a waiver, making such evidence admissible.
APPEAL from circuit court of Coahoma county, Second district, HON W. A. ALCORN, JR., Judge.
Hezekiah Jenkins was convicted of rape, and he appeals. Affirmed.
Judgment affirmed.
Rice & Crisler, for appellant.
The state introduced Dr. J. W. Gray to testify as to the condition of the prosecutrix's body, etc., to which we objected. How and on what theory could Mary Rich, a grandmother of this girl, waive the rights of this girl? The supreme court of Mississippi has held innumerable times that such can be done only by the party. Section 6380, Hemingway's Code (section 3695, Code of 1906); Davenport v. State, 108 So. 433.
As to the right of the grandmother to waive the privilege for her granddaughter, see: 37 Miss. 383; 2 Mor. St. Cas. 1303; 44 Miss. 731; 2 Mor. St. Cas. 1700; 2 Miss. 216; 37 Miss. 331; 34 Am. Rep. 449; 37 Miss. 357. For authorities under the statute as to the physician's testifying, see: 108 So. 433; 126 Miss. 260; 90 So. 440; 97 So. 484; 97 So. 530; 102 So. 769; 106 So. 753.
W. A. Scott, Jr., Special Agent, for the state.
The appellant strenuously insists that the court committed grave error in permitting Dr. Gray to testify concerning the physical condition of the prosecutrix. The court stated that if Mary Rich consented the testimony would be admissible. Appellant raises the objection that Mary Rich could not waive a privilege that is personal to Mary Lillie Bracy, and on the ground that Mary Lillie Bracy has never waived the privilege, states that the entire testimony of Dr. Gray is incompetent. In this connection, it must be remembered that the prosecutrix at the time of the trial was a girl only twelve years of age and it is reasonable to presume that she was totally incapable of realizing what a waiver of her rights meant. Under Davenport v. State, 108 So. 433, such a condition will not be tolerated. The reasoning in the foregoing decision is that the statute was enacted for the benefit of the patient and not for the protection of a criminal, a third party who was not concerned with the relation.
Hezekiah Jenkins, the appellant, was indicted and convicted of the crime of rape upon the person of Mary Lillie Bracy, a child under the age of twelve years.
The testimony for the state shows that the offense was committed about the 26th day of August, 1921, and that a warrant was issued for the appellant shortly after said date, but he was not found and not indicted until February, 1926. Most of the time between the said dates was spent by the appellant outside of the limits of the state of Mississippi. The little girl, at the time of the alleged offense, was between seven and eight years of age, and was twelve years old at the time of the trial.
She testified that on the 26th day of August, 1921, she was at the home of her grandmother, with whom she lived; that her grandmother was away at the time of the crime, attending church, and that the appellant came through a window into the house where she was, and assaulted her, lacerating her, and then threatening her with death if she told; that, after accomplishing his purpose, he left, and she did not see him any more until shortly before the trial; that, when her grandmother returned, she did not make complaint, but that on the day the offense was charged she communicated the fact to a neighbor, a child, and, through the mother of that child, the information was conveyed to her grandmother; that the grandmother received this information on Monday after the Saturday on which the offense occurred; that she examined the child, and found her lacerated, whereupon she carried her to a physician for examination, and he testified, over the objection of the appellant, to the character of the injuries to the child, and to the further fact that the child had become infected with gonorrhea.
The grandmother of the child was offered as a witness, but, on objection, was not permitted to state what the child had told her about the alleged offense at the time; but she was permitted, over objection, to testify that upon her return home she sent the child out in the yard to a clothesline to get some clothes, and, noticing that she walked peculiarly, asked her what was the matter with her, and the child replied, "Nothing," and that, when she was informed as to what was the matter with the child, she made a personal examination of her, and testified as above stated.
When the doctor was placed upon the stand to testify, the appellant objected, but the judge stated that he thought it would be all right if the grandmother, who employed the doctor, and who stood in loco parentis to the child, consented; whereupon the grandmother did consent. The doctor stated that he was a great stickler for privileged communication between a physician and his patient, and that he did not want to testify, unless he was compelled to do so, which evidence, upon the consent of the grandmother of the prosecuting witness, the judge ruled was admissible. The doctor then stated that he merely wanted to reserve the privilege, but that he had no objection to relating the facts, and he testified as above stated.
The assignment of error is the principal one relied on, and the most serious one in the case. It is argued that, under section 6380, Hemingway's Code (section 3695, Code of 1906), the evidence is incompetent, because only the child could consent to the privilege being waived, and that the child was incapable of waiving the privilege on account of her age, and that she did not, in fact, waive it, and that the...
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...568, 77 So. 605; U. S. F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115; Davenport v. State, 143 Miss. 121, 108 So. 433; Jenkins v. State, 146 Miss. 339, 111 So. 433. appellant has greatly magnified the alleged error of the court's refusal to force the child to submit to further X-rays and ph......
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Vance v. State
... ... permitting the evidence of the physician to be disclosed on ... the trial. The privilege conferred by Section 1536, Code of ... 1930, regarding communications between physician and patient, ... is for the benefit of the patient alone. Jenkins v ... State, 146 Miss. 339, 111 So. 433; 5 Wigmore on Evidence ... (2 Ed.), Sec. 2358. Although the privilege is limited to ... patient and physician by the statute this court has held that ... it may not be waived by a decedent's heirs, executor, or ... administrator. McCaw v. Turner, 126 ... ...
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Motley v. State
...do not think that our contention in this respect is in conflict with the rule announced by this honorable court in the case of Jenkins v. State, 146 Miss. 339. Wm. Maynard, Assistant Attorney-General, for the state. The alleged threats of deceased, Lee Motley, against appellant were properl......
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Alexander v. State, 1999-KA-00487-COA.
...according to case law, Evelyn had every right to do so in the absence of any action by S.A.'s mother. Jenkins v. State, 146 Miss. 339, 340, 111 So. 433, 433-34 (1927). As well, we find that the State is correct in its argument that Alexander has no rights under the law to bring forth S.A.'s......