Norwood v. State
| Decision Date | 17 November 1930 |
| Docket Number | 29063 |
| Court | Mississippi Supreme Court |
| Parties | NORWOOD v. STATE |
1 WITNESSES.
Where physician investigates by direction of court or prosecuting attorney to ascertain condition of person for purposes of trial, statutory privilege does not arise (Code 1930, section 1536).
2 WITNESSES.
Where person is examined by physician at instance or with approval of officers for purpose of law enforcement, and person examined knows, or facts reasonably give knowledge, that examination is for such purpose and no wrongful means are used, statute relating to privilege is not available (Code 1930, section 1536).
APPEAL from circuit court of Yazoo county, HON. W. H. POTTER, Judge.
Emmett Norwood was convicted of a statutory capital crime, and he appeals. Affirmed.
Affirmed.
Frank E. Everett, of Indianola, for appellant.
The deputy sheriff, together with the owner of the plantation arrested this defendant and after his arrest he was taken to Bentonia by them where Dr. Johnson was called and the defendant taken by the deputy sheriff, and Whitehead, while under arrest, to the office of Dr. Johnson and there he was stripped, and the doctor, Whitehead, and the deputy sheriff were permitted to testify over the objections of the defendant to conditions as claimed to have been found by this examination of the defendant.
Under section 7455, Hemingway's Code of 1927, what he heard or what he found, and what he might have seen, if anything, was a privileged communication and neither he, the officer, nor Whitehead were competent to testify with reference thereto, and the testimony should have been excluded.
Section 7455, Hemingway's Code of 1927; Williams v. State, 92 So. 584; Railroad Company v. Decker, 116 So. 291; Insurance Company v. Jemison, 120 So. 180; Sec. 26, Mississippi Constitution; Williams v. State, 92 So. 584; Bridges v. State, 86 Miss. 277; Connly v. State, 106 So. 827; Orrick v. State, 105 So. 465; Robinson v. State, 108 So. 903; Burnside v. State, 110 So. 121.
Edwin R. Holmes, Jr., Assistant Attorney-General, for the State.
The testimony of the physician was admissible as the appellant acted voluntarily in pulling down his clothes and he voluntarily submitted to the examination.
Underwood v. State, 108 Miss. 34, 66 So. 285.
In the cases cited by appellant, the physician was in all of such cases the physician of the party objecting. The relationship of physician and patient existed. Here it does not exist. The only criminal case in which this statute has been discussed is Davenport v. State, 143 Miss. 121, 108 So. 433. That case was decided by a divided court. We do not believe that the principles of that case are applicable here, except in so far as the principle announced by Judge Ethridge that the appellant is not entitled to raise the objection.
Appellant was convicted of a statutory capital crime, the details of which we do not deem it necessary to state, and prefer not to do so because of the nature thereof. We say of them only that the testimony was ample to sustain the verdict, and that appellant's escape from the hangman must have been that the jury regarded him of subnormal intellect, and for that reason not fit for the extreme penalty, so that he received a life sentence instead.
There are several assignments of error, none of which as applied to this record are well taken. But there is one which we think is of sufficient importance to merit a written response. This alleged error is directed to the action of the court in overruling the objection to the testimony of the physician who examined appellant soon after his arrest, and is founded upon section 1536, Code 1930, section 7455, Hemingway's 1927 Code.
Appellant was arrested about three hours after the crime was committed and, on being informed of the charge against him, he denied guilt. The sheriff then said to him: "If you haven't any sign on your underwear it would be a pretty good sign --...
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...the state or by counsel; their examination had nothing to do with the treatment of appellant as physicians. It was held in Norwood v. State, 158 Miss. 550, 130 So. 733, where a physician, by direction of the court, or an officer of the court, makes an examination of the physical or mental c......
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