State v. Smith

Decision Date09 October 1896
Citation99 Iowa 26,68 N.W. 428
PartiesSTATE v. SMITH.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Polk county; S. F. Balliett, Judge.

The defendant was indicted, tried, and convicted of the crime of producing a miscarriage of a pregnant woman, namely, Ollie Newman, and judgment of imprisonment in the penitentiary pronounced against her, from which judgment she appeals. Affirmed.W. H. McHenry and L. Kinkead, for appellant.

Milton Remley, Atty. Gen., and Jessa A. Miller, for the State.

GIVEN, J.

1. The following statement of facts that appear in the record will make plain the questions to be considered: On and prior to September 24, 1893, the defendant, Mrs. C. V. Smith, resided in the city of Des Moines, and was engaged in the regular practice of medicine. On said day Ollie Newman, an unmarried woman, aged 23, residing at the town of Swan,--and with whom and her family the defendant had been intimately acquainted for many years,--came to the defendant for treatment. Ollie Newman was then advanced between five and six months in pregnancy. She remained in the defendant's home, and under her care and treatment, for three weeks from and after said September 24th. On the morning of September 25th the defendant commenced treating Ollie Newman. On the morning of October 5th, Ollie Newman had a miscarriage, and the controlling contention is whether the treatment she received at the hands of the defendant was intended to and did produce that miscarriage. According to the testimony of Ollie Newman, she was, aside from her pregnancy, in a sound, healthy condition at the time she came to the defendant, and no attempt had been previously made to produce a miscarriage. She testifies that certain instruments and medicines were used upon her by the defendant for the purpose of producing a miscarriage, and that the miscarriage followed their use. The defendant testifies that when Ollie Newman came to her for treatment she was in a deranged condition; “that the uterus was sore, swollen, and very much inflamed, and it looked like it had been punctured in the mouth of it, and all around the sides”; and that it was “tipped,” the parts swollen, and a discharge coming therefrom. She admits the use of some kind of instruments named by Ollie Newman, but she testifies that they were used in a different way, and for a different purpose, from that stated by her. She described the treatment which she administered, and says it was proper treatment, under the conditions, to prevent a miscarriage. Several experienced physicians confirm her in this statement as to the propriety of the treatment, under conditions such as she states existed, while one or two others condemn the treatment. On the 4th day of October, defendant found the head of the fetus in the vagina, and that it had commenced to leave the uterus; and believing that a miscarriage could not then be prevented, and that the obstruction must be removed, and having no instruments, she sent for Dr. Maple. On coming, Dr. Maple refused to have anything to do with the case. Defendant testifies that Dr. Maple advised that nature be allowed to take her course. It does not appear that after Dr. Maple's visit, on the evening of the 4th, anything further was done to either prevent or produce a miscarriage. The miscarriage occurred on the morning of the 5th.

2. Appellant complains in argument of numerous rulings of the court in taking the testimony, and, in argument, refers to the motion for new trial as showing exceptions to the rulings. An examination of the abstract fails to show either objections or exceptions in many of these instances, and most of the objections urged in argument are to rulings that were manifestly correct, or without prejudice to the appellant. The following questions are so presented in the record as to require consideration: The state called Dr. Maple, for whom the defendant had sent on the evening of October 24th, and who, after stating that he went to defendant's house on that evening, and that the defendant was there, was asked as follows: “Now you may state what you saw and did there in her presence.” The question evidently refers to the defendant, Mrs. Smith, as no other person had been previously mentioned. The defendant objected on the ground “that the things he saw, and the conversation he had with this defendant, upon the occasion of the visit mentioned by him, were confidential, and that the knowledge he obtained upon that occasion was obtained in his capacity of a physician.” The county attorney announced that Ollie Newman “waives any question of privilege, and consents that the testimony of the witness now on the stand may be fully given. I am authorized to say so, am I not?” Ollie Newman: “Yes, sir.” The court ruled as follows: “Doctor, the ruling of the court is to this effect: That communications between you and the defendant, Mrs. Smith, are not privileged. It would not come under the head of privileged communications between a physician and a patient, and you can answer accordingly.” Thereupon Dr. Maple testified as follows: “I went into the room, and took off my overcoat, and laid down my instruments. Mrs. Smith told me that she had a friend from the southern part of the state; that she came there to be treated; that she was in the family way, and was to be married to a man in Pennsylvania, and must get out of this fix before she was to be married. She wanted that I should go into the room and examine the patient, and I refused to go. She told me that the girl was sick. I told her that I would have nothing to do with the case. I went into the other room, and put on my coat.” Section 3643 of the Code is as follows: “No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination, shall be allowed in giving testimony to disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline. Such prohibition shall not apply to cases where the party in whose favor the same are made waives the rights conferred.” The communication testified to was not from Ollie Newman, nor did the relation of physician and patient exist between Dr. Maple and her, as the doctor declined to have anything to do with the case. The prohibition of said section was therefore not in the favor of Ollie Newman, and she could not waive the same. The prohibition of the statute is not limited to communications with the patient, but applies to all communications of the character indicated in the statute, from whatever source, and is surely applicable, in all its force, to communications between physicians attending or consulting in the same case. The question is whether the communication from the defendant to Dr. Maple, testified to by him, was a communication properly intrusted to him, and necessary and proper to enable him to discharge his duties as a physician. In State v. Kidd, 89 Iowa, 56, 56 N. W. 263, we held that “professional communications are not privileged, when such communications are for an unlawful purpose, having for their object the commission of a crime”; citing 19 Am. & Eng. Enc. Law, 140, and cases therein cited. See, also, 1 Whart. Ev. § 590; People v. Blakeley, 4 Parker, 176; Hewitt v. Prime, 21 Wend. 79;Campau v. North, 39 Mich. 606;State v. Hilmantel, 23 Wis. 422;Coveney v. Tannahill, 1 Hill, 33. It is evident from the undisputed facts and testimony of Dr. Maple that the communication of the defendant to him was for an unlawful purpose, and had for its object the commission of a crime, and is therefore not privileged, under the...

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