State v. Brown
| Decision Date | 03 April 1934 |
| Docket Number | No. 41447.,41447. |
| Parties | STATE v. BROWN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Lee County; John E. Craig, Judge.
Action in equity to revoke the license of the defendant to practice medicine in the state of Iowa. From an order of the trial court dismissing the plaintiff's petition, the plaintiff appeals.
Affirmed.
Superseding opinion in 245 N. W. 348.
John Fletcher, Atty. Gen., Gerald O. Blake, Asst. Atty. Gen., and D. J. McNamara, Asst. Co. Atty., of Keokuk, for the State.
Burrows & Burrows, of Keokuk, for appellee.
G. L. Norman, of Keokuk, for witnesses Mary Leota, Mabel, and Paul O'Bryen.
This case is now before us on rehearing. The original opinion appears in 245 N. W. 348. A great many matters are presented and argued in the petition for rehearing, but, in view of the conclusion which we have reached, it is necessary to consider only the one question as to whether the evidence was sufficient to show that Mary Leota O'Bryen was pregnant.
This action was brought under the provisionsof sections 2492 to 2508, inclusive, of the Code of 1931, to revoke the license of the defendant to practice medicine in the state of Iowa. As ground for such revocation, it was alleged in the petition that the defendant had been guilty of unprofessional and dishonorable conduct in procuring or aiding in procuring a criminal abortion upon one Mary Leota O'Bryen. The case was tried in the district court, and at the close of all the evidence a motion of the defendant to dismiss the action because of insufficient evidence to sustain the charges made in the petition was sustained by the court, and the state appealed. On the former hearing the cause was reversed and remanded to the district court for decree canceling and revoking the license of the defendant.
[1] As above stated, the petition in this case charged the defendant with unprofessional and dishonorable conduct in procuring or aiding in procuring a criminal abortion on one Mary Leota O'Bryen. As an essential element to support such charge, it was necessary for the state to prove that the said Mary Leota O'Bryen, upon whom it was charged abortion had been committed, was pregnant. After a careful reading of all the evidence as shown by the record, we feel constrained to hold that in this essential of the state's case we think it has failed.
[2][3] In the trial of the case one Dr. Rankin was called as a witness. Dr. Rankin had been the family physician of the family of Mary Leota O'Bryen, who was a girl 15 years of age, and it appears that she was taken to his office by her mother. For approximately three months Dr. Rankin had been treating this patient for matters connected with her general condition. On the occasion of the last visit to Dr. Rankin's office he made an examination of the child in the presence of her mother and at that time stated that she was pregnant. When called as a witness, Dr. Rankin was asked as to what the condition of Mary Leota O'Bryen was at the time of such examination, and, objection being made to his testimony as a privileged communication, he was not allowed to testify. Mrs. O'Bryen, the mother of Mary Leota, was called as a witness and testified to the statement made by Dr. Rankin at the time he made the examination, to the effect that her daughter was then pregnant. This testimony was objected to and motion made to strike it as hearsay, but it was allowed to stand. It may be questioned whether, under the holding in Armstrong v. Town of Ackley, 71 Iowa, 76, 32 N. W. 180, the statement of Dr. Rankin can be considered. Even if it be admissible, as contended by appellant, under the rule stated in State v. Sterrett, 68 Iowa, 76, 25 N. W. 936, it is limited in its probative effect. As this evidence is now before the court, it does no more than to establish the fact that the particular statement inquired about was made by Dr. Rankin at a certain time and place. Under well-known rules of evidence, a witness may testify to a statement of a third party for the purpose of showing a motive for his actions, but the evidence thus introduced goes only to the question whether or not such statement was made, and cannot be considered as evidence of the truth of the statement itself. As far as this evidence is concerned, therefore, we merely have the fact that such a statement was made by Dr. Rankin, but we have no evidence as to the truth thereof. Van Tuyl v. Quinton, 45 Iowa, 459;Chew v. O'Hara, 110 Iowa, 81, 81 N. W. 157.
[4][5] Mary Leota O'Bryen was examined as a witness for the state, but refused to testify to what transpired between her and the defendant on the ground that her answers to the questions propounded to her might render her criminally liable and expose her to public ignominy. The state contends that she should have been obliged to answer for the reason that under our statutes no criminal liability on her part could have been involved. We agree with the state's contention that the witness should not have been excused from answering on the ground that her answers...
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Boswell v. Iowa Bd. of Veterinary Medicine
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