Raggio v. Bryan, 4260

• Decision Date: 06 January 1960
• Docket Number: No. 4260,4260
• Citation: 348 P.2d 156,76 Nev. 1
• Parties: William J. RAGGIO, District Attorney of Washoe County, Appellant, v. William J. BRYAN, Respondent.
• Court: Nevada Supreme Court

Page 156

348 P.2d 156

76 Nev. 1

William J. RAGGIO, District Attorney of Washoe County, Appellant, v. William J. BRYAN, Respondent.

No. 4260.

Supreme Court of Nevada.

Jan. 6, 1960.

Roger D. Foley, Atty. Gen., William J. Raggio, Dist. Atty., Reno, for appellant.

Streeter & Sala, Reno, for respondent.

McNAMEE, Chief Justice.

Respondent was charged with furnishing intoxicating liquor, to wit, Scotch whiskey and champagne, to Jean Ann Dickson, ¹ a minor of the age of 18 years, in violation of NRS 202.050. Section 2 of said act provides: 'Nothing in this section shall be deemed to apply to parents of such minor * * * or to [her] guardians or physicians.'

After a preliminary hearing before a justice of the peace, respondent was bound over for trial by the District Court of the Second Judicial District. Thereafter respondent commenced this proceeding for a writ of habeas corpus in another department of said District Court, and as a result thereof he was discharged from custody. From the order of discharge this appeal is taken.

Appellant recognizes the statutory exemption of physicians, but he contends that the relationship of physician and patient must exist at the time of the act charged for such exemption to be applicable.

The only evidence before the court below was the transcript of the proceedings of the preliminary hearing before the justice of the peace. At said hearing the minor testified that she had gone to the office of respondent on May 13, 1959, to work for him as a paid employee addressing mailing matter in connection with a political campaign. That on arrival at about 3:00 P.M., she received from respondent a polio shot, but that such medication had not been prearranged, and no other medical treatment was given her by respondent except the shot hereinafter referred to. Respondent's receptionist left the office about 5:30 P.M. and thereupon respondent gave the minor two water glasses of champagne and about the same amount of whiskey. This liquor made her drunk, and she became sick. During the time she was drinking this liquor, respondent talked to her not about her problems, but about free love and matters of that general nature. Some time thereafter respondent administered her some sort of a shot because she had vomited. She was still intoxicated and hysterial when her mother saw her at midnight. A police officer testified that upon interviewing respondent after the above incidents, respondent admitted he had given the minor champagne and whiskey. Respondent had been the physician of the minor and her family for three years during which time he had given the minor hypnotic and other treatments.

The obvious purpose of exempting physicians from the penal provisions of said statute was to protect them when prescribing intoxicating liquor in their professional capacity. Blakeley v. State, 73 Ark. 218, 83 S.W. 948. No evidence whatsoever was presented to show that respondent supplied the minor with the liquor in his capacity as a physician, and the fact that the respondent for some period of time immediately preceding this incident had been the minor's family physician was in itself insufficient to raise such an inference. Cf. State v. Morton, 38 S.D. 504, 162 N.W. 155, Ann.Cas.1918E, 913; State v. Pomeroy, 163 Mo.App. 288, 147 S.W. 144. On the other hand, the evidence clearly shows the contrary: the minor was not in respondent's office as a patient, but as a paid employee;...