State v. Long

• Court: Missouri Supreme Court
• Writing for the Court: GRAVES, J.
• Citation: State v. Long, 257 Mo. 199, 165 S.W. 748 (Mo. 1914)
• Decision Date: 02 April 1914
• Parties: THE STATE v. OLLIE LONG, Appellant

165 S.W. 748

257 Mo. 199

THE STATE v. OLLIE LONG, Appellant

Supreme Court of Missouri

April 2, 1914

Appeal from Nodaway Circuit Court. -- Hon. Francis H. Trimble Judge.

Reversed and remanded.

John W Stokes and Cook, Cummins & Dawson for appellant.

(1) There was not sufficient corroboration of the testimony of Carrie Miles, as to the promise of marriage. R. S. 1909, sec 5235; State v. Heed, 57 Mo. 254; State v. Miller, 44 Mo.App. 159. (2) The evidence of Drs. Miller and Davis should have been admitted. These doctors were not permitted to testify, and the offered evidence was rejected, on the ground that any information they might have was acquired under the confidential relation of physician and patient, and could not, therefore, because of the statute, be disclosed by the physician. (a) The statute preventing a physician from disclosing information acquired by him in his professional capacity, cannot be used by the State in the prosecution of one of its citizens, so as to conceal the truth, and thus secure the conviction of the defendant. 10 Ency of Evidence, 98; 28 Am. & Eng. Ency. Law, 83; Kling v. Kansas City, 27 Mo.App. 240; Wigmore on Evidence, sec. 2285; 40 Cyc. 2352. (b) The privilege in this case has been waived. By calling one of two attending physicians, the privilege of the statute is waived as to the other. O'Brien v. Implement Co., 141 Mo.App. 331; 40 Cyc. 2399; Smart v. Kansas City, 208 Mo. 162; State v. Peterson, 6 Wyo. 419. The privilege of the statute was waived when Carrie Miles, the patient, voluntarily testified as to her relations with the physicians, their examination and treatment of her, and fully disclosed her condition as she says her physicians found it. Highfill v. Railroad, 93 Mo.App. 219; Holloway v. Kansas City, 184 Mo. 43; Lane v. Boicourt, 128 Ind. 420; Webb v. Met. St. Ry., 89 Mo. 610.

John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) This court, in an opinion in this same case, State v. Long, 238 Mo. 383, held that the testimony of the father of the prosecutrix to the effect that the defendant admitted the promise of marriage was sufficient corroboration. In addition to the testimony of the father of the prosecutrix, John Miles, as to the admission by the defendant of the promise of marriage, there was the direct testimony of the witness, Harry Brunk, to the effect that the defendant had said he had an opportunity to marry, and when asked as to whom he was going to marry the defendant replied "Carrie Miles." The State can rely on the further facts of the attentions paid the prosecutrix and the letters written to her by the defendant, which, in themselves are sufficient corroboration of the promise of marriage. State v. Wheeler, 108 Mo. 658; State v. Eisenhour, 132 Mo. 140; State v. Davis, 141 Mo. 522; State v. Sublett, 191 Mo. 163. (2) The appellant contends that Doctors Miller and Davis would have testified that the prosecutrix was pregnant on November 5, 1908, when the time of the alleged seduction was about the 22nd of August, 1909. There was some other testimony concerning the visit of Doctors Miller and Davis in November, 1908. It is contended by appellant that this testimony and the further fact that Dr. Gray and prosecutrix testified as to treatment given the prosecutrix at St. Joseph, a month later, amounted to a waiver of Sec. 6362, R. S. 1909. The appellant, on this contention of waiver, relies upon the case of Epstein v. Penn Ry. Co., 250 Mo. 1. In this contention the appellant has failed to notice a distinction between the case at bar and the Epstein case. In the Epstein case a Dr. Elston, together with the plaintiff, testified as to the mode of treatment given by Dr. Elston and as to the condition of the plaintiff. A Dr. Christie and a Dr. Phelps were present at the same time and place and the court rejected their testimony as to the same facts. In the case at bar it is proposed to have Doctors Miller and Davis testify to the treatment and condition of the prosecutrix at a different time and place than that testified to by Dr. Gray of St. Joseph, and of which a detailed account was given by both the prosecutrix and Dr. Gray.

GRAVES, J. Woodson and Walker, JJ., concur in separate opinion by Woodson, J.

OPINION

In Banc

GRAVES J.

-- Defendant stands charged with the crime of seduction under promise to marry, the information being based on section 4478, Revised Statutes 1909. The scene of the alleged crime is located in Atchison county by such information, and the case was first tried in that county and defendant convicted. [State v. Long, 238 Mo. 383, 141 S.W. 1099.] The judgment of conviction was reversed and the cause remanded, for reasons fully stated by Blair, C., in the cause supra. When the case again reached the circuit court of Atchison county, Judge Ellison, the judge of that court, disqualified himself, and Judge Francis H. Trimble was called in to try the same. Application was made by defendant for a change of venue, and upon a hearing thereof, Judge Trimble sustained the same and sent the cause to Nodaway county, in which court a trial was had, and defendant again found guilty. By the verdict his punishment was fixed at six months' imprisonment in the county jail, and a fine of five hundred dollars, and from a judgment upon that verdict the defendant has again appealed to this court. In Division No. 2, an opinion was handed down affirming such judgment, but a motion for a rehearing was filed by the defendant, which motion was sustained, and the cause transferred from that court to this court.

The pertinent facts in abbreviated form are about as follows:

At the date of the alleged offense, the prosecutrix, Carrie Margaret Miles, was practically nineteen years of age and lived on a farm with her parents in Atchison county. The defendant at the same date was about twenty-three years old and lived on a farm, with his parents, in Holt county, but only four miles distant from the farm of Miles. The prosecutrix and the defendant had been acquainted in a casual way for some years prior to August 22, 1909, the date fixed as the time of the seduction. From June to October, 1907, the defendant seemingly paid some attention to the prosecutrix, and during this period visited her upon several Sundays, taking her to church and other public gatherings. During this time the prosecutrix claims no ungentlemanly conduct upon the part of the defendant. She says, however, that twice he proposed marriage, and twice she rejected him. That she told him her folks said she was too young to marry, and that they agreed to quit company for awhile, but with a tacit understanding that his attentions would be renewed later. These things the defendant denies. In October, 1907, defendant's attentions to prosecutrix ceased, and each went his or her own way for the months between that date and a short time before the date of the alleged offense. During these months, October, 1907, to August, 1909, nothing passed between the parties, except several unimportant post cards sent by the defendant. They met occasionally at public places and talked upon commonplace subjects. Prosecutrix during this time kept company with other young men and corresponded with them, -- among them a Mr. Lee and also a young man who lived at their home. August 15, 1909, defendant, his two sisters and a young man named Miles, were at church and were invited by Carrie Miles to her home for dinner. The invitation was accepted, and later in the day (about five or six o'clock in the evening) they all went over to the defendant's home. Carrie Miles was escorted over there by Mr. Lee, who had called up by phone and engaged her company whilst defendant and the others mentioned were there. Young Lee took her home from Long's place. Up to this point there was nothing wrong between these two parties. Miss Miles says that on the 15th of August defendant engaged her company for the next Sunday, August 22nd. Defendant says that she asked him over to take her to church, and he told her he didn't know about it, but would write. The record shows he did write telling her he would be over to take her to church, and he went over according to the terms of the letter. He drove her to church, a distance of five miles, without incident worthy of relation. After the services the two, in the buggy, started for her home. The church was in Holt county, and the county line was much nearer her home than the church. She says that about the time they reached the county line between Atchison and Holt counties (her home being in Atchison) he rather fervently proposed marriage to her, and though not exactly at first, but she shortly consented. Immediately following he proposed illicit intercourse, and with but little hesitation (speaking from the record) to this she consented. True it is, she says that he promised to marry her the next Wednesday, and urged that no harm could come of the intercourse.

According to the story of prosecutrix she prepared to go to town with him Wednesday to get married, but defendant although duly waited for, came not. The whole transaction of becoming engaged, and having intercourse covered a very short time. Counsel for defendant figure it out to be thirty seconds. The parents were not advised of the proposed marriage on the Wednesday named. Nor did the prosecutrix take any steps to find out why defendant had not kept his word. She says that they had agreed to keep the marriage matter a secret until he could rent a certain farm in the neighborhood. She says that defendant came back the next Sunday August 29th, but this is denied by defendant, he says that he was not there again until September 5th. According to the prosecutrix he came to her home on Sunday, August 29...