Sproles v. State
| Decision Date | 02 November 1936 |
| Docket Number | 32188 |
| Citation | 176 Miss. 810,170 So. 293 |
| Court | Mississippi Supreme Court |
| Parties | SPROLES v. STATE |
Where defendant, charged with assault and battery with intent to kill, testified that she acted in self-defense, having been assaulted by another who beat defendant over head, inflicting wounds treated by physician, physician's testimony that he had not treated a wound on defendant's head held admissible (Code 1930, sec. 1536).
APPEAL from the circuit court of Madison county, HON. J. P ALEXANDER, Judge.
Nettie Sproles was convicted of assault and battery with intent to kill, and she appeals. Affirmed.
Affirmed.
C. B. Greaves, of Canton, and Jack M. Greaves, of Madison, for appellant.
Dr. P. R. Greaves was appellant's physician and was not put on the stand by her. The state proceeded to place Dr. Greaves on the stand over and above the objection of the appellant, and prove that he had never treated her for a head wound.
Appellant states that this error allowed by the learned trial judge helped convict her; that Dr. Greaves should not have been permitted to testify against her, and that his testimony violated her rights; that it was privileged; that it violated section 1536, Code of 1930, and that this honorable court has held many times that a surgeon or physician shall not be required to disclose facts learned by him from a patient under his care or seeking professional advice, unless the patient permits the information to be divulged in evidence.
Appellant objected to the introduction of her own physician by the state, and she states that the court erred in so doing, and that this honorable court should set aside the verdict of the lower court, and reverse this cause of action.
Davis v. Elzey, 126 Miss. 789; Hunter v. Hunter, 127 Miss. 683; Yazoo & M. V. R. Co. v. Decker, 150 Miss. 621; Powell v. Newman Lbr. CO., 165 So. 299.
Webb M. Mize, Assistant Attorney-General, for the state.
Section 1536, Code of 1930, merely declares that communications made to a physician or surgeon by a patient are privileged. The testimony of Dr. Greaves did not show any communication. He was merely asked if in May, 1935, he had had occasion to treat Nettle Sproles for any sort of head wounds. There was a general objection made to the question, which was overruled. His answer was that he had not. In the first place, a mere general objection to a question without stating wherein the incompetency lies is insufficient.
Howard v. Town of Newton, 108 Miss. 548, 67 So. 49; Boatwright v. State, 143 Miss. 676, 109 So. 710; Jackson v. State, 163 Miss. 235, 140 So. 683; Keeton v. State, 167 So. 68.
In the instant case there was nothing brought out of a privileged nature. The physician's testimony was negative. He had been called to treat Nettie Sproles for malarial fever. Nettle Sproles testified that Dr. Greaves had treated her. Therefore, the question of whether or not Dr. Greaves had treated her was an issue and the state had authority to show in rebuttal that the physician had, in fact, not treated the defendant. There was no violation of the privileged communication statute.
This is an appeal from a...
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