Smits v. State

Citation130 N.W. 525,145 Wis. 601
PartiesSMITS v. STATE.
Decision Date14 March 1911
CourtUnited States State Supreme Court of Wisconsin


Error to Municipal Court, Eastern District of Waukesha County; E. C. Armin, Judge.

John Smits was convicted of statutory rape, and he brings error. Affirmed.D. J. Hemlock, for plaintiff in error.

Levi H. Bancroft, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.


The plaintiff in error was convicted of the crime of rape upon a female under the age of 14 years in violation of the provisions of section 4382, Stats. Wis. 1898, and sentenced to imprisonment for 30 years. Most of the errors claimed relate to rulings upon the trial, and they will be briefly considered in their order.

Two practicing physicians, who made examination of the person of the complaining witness after the alleged rape, were allowed to give expert testimony in the face of objection that they had not qualified themselves to testify as medical experts, and these rulings are assigned as error. One of the physicians testified that he was a graduate of a medical college, and was a practicing physician in the city of Waukesha, duly licensed to practice in this state, and had been practicing for nearly five years; the other testified that he was a regular, duly licensed practicing physician in Waukesha, and had practiced there 11 years. The objection is that it did not appear that they had recorded their licenses with the county clerk as required by section 1435e, Sanborn's Supplement (section 5, c. 426, Laws 1903), and hence that under section 1436, Sanborn's Supp. (section 8, c. 426, Laws 1903) they are debarred from testifying as experts.

There are two sufficient answers to this objection: First, the last-mentioned section provides that nothing therein shall be construed as restricting any court in a criminal action from receiving the testimony of any person as a witness, thus apparently leaving courts free in criminal cases to receive the testimony of physicians who qualify themselves as experts under general, common-law rules, regardless of the requirements of this statute; second, the statement that they are duly licensed to practice and are practicing must be held to mean prima facie that they have fully complied with the license law, because the first above-named section makes it unlawful for a physician to practice in the state who has not first recorded his license. Had the accused desired, he could have cross-examined the witness fully as to his qualifications before his examination as an expert.

Another objection is urged to the effect that neither of the physicians qualified himself, because neither testified that he had ever had practical experience in a case of this kind. Both testified that they were active practitioners and had been such for a number of years; this carries with it the fair inference that their testimony was based on actual experience. It was open to the accused to cross-examine them as to their practical knowledge, but he did not choose to do so. Miske v. Thom (Wis.) 128 N. W. 858.

It is further claimed that the physicians should not have been allowed to testify, because their information was gained while treating the complaining witness professionally, and hence comes within the inhibition of section 4075, Stats. 1898, which provides that no physician shall be compelled to disclose information acquired in attending a patient professionally, and which information was necessary in order to enable him to prescribe for the patient. We do not decide whether this statute applies to criminal cases; but, assuming that it does, it must affirmatively appear, in order to call for its application, that the information was acquired while the physician was attending the patient in his professional capacity, and that it was necessary in order to enable the physician to prescribe. Neither of these facts appears, and hence there was no error in any event.

Objection is made that the state was allowed to put leading questions to the prosecuting witness, and such is the fact; but in cases of this nature, where the witness is young and is obliged to testify concerning matters which every instinct of womanly modesty prompts her to conceal, the rule is well established that leading questions are almost always necessary in order to get at the facts. A child who would testify glibly as to such matters would be justly regarded with suspicion. It does not appear in the present case that the discretion of the court was abused.

The complaining witness was asked without objection whether she was confirmed this year and answered, “Yes”; the intention evidently being to corroborate her statement as to her age. She was then asked in what church, and replied, against objection, “In the German Reformed Church.” The admission of this answer is alleged as error. Its relevancy is not made to appear satisfactorily, and we should have been better pleased, had the objection been sustained. We are unable, however, to conclude that the reception of the answer was materially prejudicial.

It is claimed that...

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11 cases
  • Booren v. McWilliams
    • United States
    • United States State Supreme Court of North Dakota
    • January 14, 1914
    ...... testifying fully as to conversations had with his patients,. but the laws of this state have exempted or prohibited. physicians from testifying as to information acquired from. his patient while in attendance, and which is necessary ...Gorman, 47. Ind.App. 432, 94 N.E. 730; People v. Koerner, 154. N.Y. 355, 48 N.E. 730; People v. Schuyler, 106 N.Y. 298, 12 N.E. 783; Smits v. State, 145 Wis. 601, 130. N.W. 525; Campau v. North, 39 Mich. 606, 33 Am. Rep. 433; Lincoln v. Detroit, 101 Mich. 245, 59 N.W. 617;. ......
  • State v. Law
    • United States
    • United States State Supreme Court of Wisconsin
    • June 4, 1912
    ...takes his life. The authorities uniformly support this position.” This question was mooted, but left undecided, in Smits v. State, 145 Wis. 601, 130 N. W. 525. We leave the question still open and undecided. Section 4078d, Stats., provides: “No person shall be excused or privileged from tes......
  • Schwartz v. Schneuriger
    • United States
    • United States State Supreme Court of Wisconsin
    • April 5, 1955
    ...done so had he required emergency treatment. The respondent cites Kenyon v. City of Mondovi, 98 Wis. 50, 73 N.W. 314, and Smits v. State, 145 Wis. 601, 130 N.W. 525, as authority for his statement that the statute only forbids a doctor from disclosing information he acquired in attending th......
  • Love v. State, S
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 1974
    ...Hannon v. State, 70 Wis. 448, 451, 452, 36 N.W. 1; Bannen v. State, 115 Wis. 317, 329, 91 N.W. 107, 91 N.W. 965; Smits v. State, 145 Wis. 601, 605, 606, 130 N.W. 525.' Other courts have apparently merely eased the requirements of contemporaneity and spontaneity in admitting the statements u......
  • Request a trial to view additional results

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