Skidmore v. State

• Decision Date: 03 August 1939
• Docket Number: 3271.
• Citation: 92 P.2d 979,59 Nev. 320
• Parties: SKIDMORE v. STATE.
• Court: Nevada Supreme Court

92 P.2d 979

59 Nev. 320

SKIDMORE v. STATE.

No. 3271.

Supreme Court of Nevada

August 3, 1939

Appeal from Second Judicial District Court, Washoe County; A. J Maestretti, Judge.

Oscar Skidmore was convicted of committing a lewd act upon the person of a female child of the age of five years, and he appeals.

Affirmed.

Oliver C. Custer and Grant L. Bowen, both of Reno, for appellant.

Gray Mashburn, Atty. Gen., W. T. Mathews and Alan Bible, Deputy Attys. Gen., and Ernest S. Brown, Dist. Atty., and Nash P Morgan, Asst. Dist. Atty., both of Reno, for the State.

ORR Justice.

The appellant was, by means of an information filed in the Second Judicial District Court of the State of Nevada, on the 14th day of November, 1938, charged with the crime of committing a lewd act with and upon the person of Irene Taylor, a child of the age of five years. Thereafter the appellant was tried found guilty and sentenced to a term in the state prison. From the judgment of imprisonment and order denying motion for new trial this appeal is taken. The appellant will be hereinafter referred to as defendant. The facts, insofar as it is necessary to detail them, are as follows:

Defendant, during the month of September, 1938, resided in Cabin No. 3 of a row of cabins facing north on the Southern Pacific siding, which siding runs east and west between an alley on the east, Washington Street on the west, West Second Street on the south, and the Southern Pacific Railroad on the north, in Reno, Washoe County, Nevada. The cabin east of the defendant's cabin, or Cabin No. 4, was occupied by a man named Funk, and one Pat Scanlan occupied Cabin No. 2, which adjoined defendant's cabin to the west. South, along the alley, about fifty feet away, was situated a house occupied by Irene Taylor and her mother. The child Irene Taylor, together with other children, made a practice of playing in the vicinity of the cabins, and at times visited in the different cabins. On the 24th of September, 1938, Irene Taylor met defendant. In the afternoon of said day she went into the cabin occupied by him, and remained there for about twenty minutes. Mr. Funk instructed a playmate of Irene, one Josephine Cheney, to inform Mrs. Taylor that Irene was in Skidmore's cabin and to get her out of there. In response to this message, Mrs. Taylor sent her oldest son, Edward Tilliman, to Skidmore's cabin for Irene. Edward Tilliman testified as follows relative to the circumstances of his visit to the cabin:

"Q. Will you tell the jury what you did? A. I went right over to his cabin--to Skidmore's Cabin No. 3 and knocked on the door and asked for Irene, and he said, 'Wait a minute' and I waited about a minute and she came out.

"Q. Did he threaten you any? A. No, he did not.

"Q. Did he open the door when you came to the cabin? A. He just cracked open the door wide enough and I could hear what he said easily.

"Q. Did he open it wide enough so you could see whether he was dressed or undressed? A. Well, he did not have the curtain up and I saw through the window at the top of the door and he did not have a top shirt on.

"Q. He did not have a top shirt on? A. He had an undershirt on.

"Q. He had an undershirt on? A. Yes, sir.

"Q. Did he ask you to come in the house? A. No, sir.

"Q. Did he tell you to come in the house? A. I never tried to go in.

"Q. He just said, 'Wait a minute'? A. Yes."

The following Monday Irene Taylor attended her class at the Catholic School in Reno, Washoe County, Nevada. On this date she complained to her teacher that she was suffering pain. The teacher made an examination, notified her mother, and sent the child home. Thereafter the child was taken to the office of Dr. Dwight L. Hood, who made an examination and had certain laboratory tests made, and determined therefrom that the child was suffering from gonorrhea. The child was later taken to the Washoe General Hospital and placed under the care of Dr. L. R. Brigman, a child specialist, whose examination also disclosed that the child was suffering from the said disease. On the 29th of September, 1938, the defendant was taken into custody by Sheriff Root. The same day Deputy Sheriff Earl Griffith made a request of the county physician, Dr. George A. Cann, to examine defendant to determine whether he, defendant, was afflicted with gonorrhea. Defendant was, on September 29, 1938, taken to Dr. Cann's office and an examination made. As a result of such examination it was determined that defendant was suffering from said disease. Later Deputy Sheriff Griffith took the defendant to the Washoe General Hospital, where the following transpired:

"A. I taken him directly to the little Irene Taylor room and the nurse admitted us, and as we walked in why she, the little girl's sister was there, Alice, and almost the minute that we walked in the little girl pointed her finger at Skidmore, and said, 'That is the man.'

"Q. Then what happened then--what happened after that, if anything? A. I started talking with the little girl--little Irene Taylor, and I asked her several questions, and she seemed to be scared, and so she told me that if I would take Mr. Skidmore out of the room, pointing to him, that she would talk. So I told her that I could not do that after all as Skidmore was in my custody and that I could not allow him to leave or go out of my sight.

"Q. Could he hear you from where he was standing? A. He could. Yes, he was standing right along side of me. At that time I asked Skidmore to stand over in the corner of the room and turn his back to us, and then I talked to the little girl and she seemed to be more quiet after that, and I asked her if Skidmore--

"The Court: Was he within hearing distance of the little girl? A. Judge, your Honor, I should judge probably in five or six feet or something like that.

"The Court: Go ahead. A. After Mr. Skidmore stood over in the corner of the room which is a very small distance, it is not a large room, I asked the little girl, 'If that was the man that had put his penis between her little legs?' And she says, 'Yes, he is the one.' About that time Skidmore turned around and he says, 'You had better be careful what you say' or words to that effect, and that was practically all of the conversation and shortly after that we left."

The witnesses Scanlan and Funk testified they saw the little girl in or near the cabin, and one of them testified that he heard a whispered conversation in the cabin occupied by defendant, and identified one of the voices heard as Irene's.

Defendant makes five assignments of error. We have given careful consideration to each, and have reached the following conclusions relative thereto:

As to whether there is merit to the contentions made by defendant depends upon the admissibility of the testimony of Dr. Cann as to results of his examination of defendant, and of Deputy Sheriff Griffith relative to what transpired at the Washoe General Hospital. We will first proceed to a consideration of those questions.

Did the trial court err in admitting the testimony of Dr. Cann? As will be noted, it is contended that to admit such testimony was a violation of the confidential relationship existing between physician and patient; second, that permitting such evidence invaded defendant's constitutional privilege against self incrimination.

The general rule is that to render a physician incompetent to testify, the information which he is called upon to disclose must have been acquired in his professional capacity while attending the patient. 70 C.J. p. 443, § 597; Norwood v. State, 158 Miss. 550, 130 So. 733.

Defendant cites Section 8974, N.C.L., which reads as follows: "A licensed physician or surgeon shall not, without the consent of his patient, be examined as a witness as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient; provided, however, in any suit or prosecution against a physician or surgeon for malpractice, if the patient or party suing or prosecuting shall require or give such consent, and any such witness shall give testimony, then such physician or surgeon, defendant may call any other physicians or surgeons as witnesses on behalf of defendant, without the consent of such patient or party suing or prosecuting."

It will be noted that the prohibition against a physician testifying exists only as to information acquired in attending the patient which was necessary to enable the physician to prescribe or act for the patient. A physician may testify where an examination is made for the purpose alone of searching for physical symptoms bearing upon the guilt or innocence of a defendant and not for diagnosis and treatment. 70 C.J. p. 440, § 590.

In this case the examination was made at the request of the deputy sheriff, and was for the express purpose of determining whether the defendant was infected with the disease of gonorrhea, and not for the purpose of diagnosis and treatment. If treatment was asked and given, it was after the examination made at the request of Deputy Sheriff Griffith.

Defendant lays stress on the fact that Dr. Cann made a second visit to the county jail to examine him, and...