State v. Pierce

• Citation: 87 Vt. 144,88 A. 740
• Court: Vermont Supreme Court
• Decision Date: 13 October 1913
• Parties: STATE v. PIERCE.

88 A. 740

87 Vt. 144

STATE

v. PIERCE.

Supreme Court of Vermont. Windsor.

Oct. 13, 1913.

Exceptions from Windsor County Court.

Duane C. Pierce was convicted of failing to report to the health officer a suspected case of diphtheria known to him as the attending physician, and he brings exceptions. Exceptions overruled.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Homer L. Skeels, State's Atty., of Ludlow, for the State.

Gilbert A. Davis, of Windsor, and Frank A. Walker, of Ludlow, for respondent.

POWERS, J. This respondent was convicted under P. S. 5454, which requires an attending physician to report to the health officer known or suspected cases of communicable diseases dangerous to the public health. The illness directly involved was that of Pearl, infant daughter of William S. Newton, of Tyson, a small village in the town of Plymouth, who was attended by the respondent on several occasions between January 3 and 8, 1911, and who died on the 9th from diphtheria, as the evidence tended to show.

From the very necessities of the case, the state was obliged to rely upon circumstantial evidence to prove that the respondent knew or suspected that Pearl Newton's case was one of diphtheria. It was therefore proper and legitimate to show that other eases of this disease had existed in Tyson in the previous months of October and November, that the houses wherein these cases existed were quarantined with a placard thereon bearing in large letters the word "Diphtheria," provided, of course, that there was evidence tending to show that the respondent knew about it, or that the circumstances were such that the jury could, reasonably draw therefrom the inference that he knew about it His knowledge of these facts was not the ultimate fact to be proved, but if established bore directly upon what his subsequent knowledge or suspicion would be when called to treat the Pearl Newton case. So the evidence regarding the cases of diphtheria in the Coolidge and Merrill houses and elsewhere in the community, and that the houses were placarded as stated, was properly received, for the evidence abundantly showed that the respondent was in the village at the time, and in such circumstances as to make it almost unbelievable that he failed to observe the diphtheria placards. Whether he did in fact see them was a question for the jury. But the fact that positive evidence thereof was not at hand did not render the evidence referred to inadmissible.

In disposing of this matter in this general way, we are treating the questions as though sufficiently raised by the exceptions saved. It is proper to state, however, that these are all or nearly all entirely inadequate, for they are mere general objections not specifying any ground therefor. State v. Comstock, 86 Vt. 42, 83 Atl. 539; Paige v. McCarthy, 86 Vt. 127, 83 Atl. 659. The court did say, however, that this line of evidence might be received subject to respondent's exceptions, and, lest this statement may have been regarded as an assurance that specific grounds need not be stated, we have deemed it best—without intending thereby to establish a precedent—to make this brief disposition of the points argued.

Dr. Haselton was a witness for the state. He was asked a hypothetical question, as follows: "If you should be called into a family where one of the family complained of a sore throat—the mother—and there was a child two years old that was ill, had difficulty in breathing, and there had been cases of diphtheria in the immediate vicinity from four to six weeks before, and one member of the family, with whom another member of the family had been at the time, had died of diphtheria, would you naturally suspect the presence of any particular disease, and, if so, what?"

To this question the respondent objected as not warranted by the testimony. This meant, of course, that the evidence did not sustain the assumed facts. The witness was used out of time for special reasons, and the state assured the court that the foundation would be supplied. The court suggested that it was not a question what the witness would naturally suspect, and the state's attorney modified the question by asking, "What would an ordinary practicing physician naturally suspect under such circumstances?" Thereupon respondent's counsel said, "We desire an exception, because it is not a proper question as framed." The witness answered that he thought he would suspect diphtheria. To the question as finally admitted, the only objection was to its form. But this is a matter within the discretion of the court, and not subject to review. Besides, the particular in which the question was improper was not pointed out, so there was nothing specific for the court to rule upon. Nor would the matter be affected if we regard the objection for want of a foundation to follow along, for the evidence fairly tended to establish each of the facts assumed in the question, save only slight and unimportant details, like the age of the child, which was 2 years and 5 months instead of as stated.

It appeared that Myrtie Newton, a sister of Pearl, was sick at the house of a neighbor, and died there November 8, 1910. After her burial, and before Pearl's sickness, by direction of the state authorities, Drs. Stone and Dalton, of Burlington, caused her body to be exhumed, and in the presence of the respondent performed an autopsy thereon, and showed the respondent the condition of the throat. This was on November 19th. The organs removed from the body were shown Dr. Kidder, a witness for the state and a member of the state board of health, and he testified as to what the organs were, and that the larynx showed a diphtheritic membrane. This answer was objected to; but no ground of objection was stated, so we take no time with it. The witness was then asked, "Would that (diphtheritic membrane) be apparent to an ordinary practicing physician?" This...