State v. Law

136 N.W. 803, 150 Wis. 313, 1912 Wisc. LEXIS 215

• Court: Wisconsin Supreme Court
• Decided: September 20, 1912
• Status: Published

Opinions

The following opinions were filed June 4, 1912:

TimliN, J.

The testimony offered on the part of the state tended to show that on Wednesday, July 19, 1911, the deceased, Annie O’Brien, a married woman, residing with her husband, consulted the accused, a licensed physician, in a professional capacity, informing him that she was about five weeks advanced in pregnancy and wished him to produce a miscarriage, and that defendant, by the use of an instrument, for that purpose, inserted a tube in the uterus. On Thursday, the next day, she removed the tube, and following this (how soon not stated) she became sick. This happened a week before the day of her death, and she had been sick several days before her death according to her statement to the nurse, Richter. On the evening of July 25th the husband of deceased called Dr. Dean on the telephone, and the latter declined to go to O’Brien’s house because he, Dean, was himself sick. lie gave O’Brien tlie names of several otber physicians whom the latter might call. Later that night O’Brien called personally at Dean’s house, roused the latter, and told him that his wife had been to see Dr. Law, and gave such description of her condition as led Dr. Dean to suspect that something irregular had been attempted. Dr. Dean still refused to call and recommended’ O’Brien to get another doctor, and told the latter that on his way to the hospital in the morning he would call on Mrs. O’Brien. He did so, and found her in an advanced stage of peritonitis, her pulse and temperature indicating a dangerous condition, and found a bloody discharge from the vagina. Dr. Dean informed her that he would not take charge of her case unless she made a full statement to hint concerning it. He insisted upon this, he says, to enable him to treat the case properly and also for his own protection. She made such statement and implicated the defendant as having, with her consent, attempted an abortion. Dr. Dean concluded the only way to save her life was to take her to the hospital and, by an operation, open the abdominal cavity and drain off the pus there apparently collected. She was taken to the hospital. Dr. Dean called in Dr. Donovan. It was found that the patient’s condition was such that she failed to respond to ordinary heart stimulants, and this, together with other symptoms, convinced the doctors that an operation could not be safely performed, and also that the woman was in ■ extremis. Knowing that she was about to die, she made a dying declaration, implicating the accused, to Deborah Richter, one of the nurses at the hospital. Dr. Dean informed the district attorney, who came to the hospital and took her dying declaration in the presence of the two doctors, Dean and Donovan, the nurse, and a lady stenographer, who afterwards wrote it out in typewriting. The woman died in the afternoon of that day, and an autopsy disclosed, according to the opinion of the physicians who conducted the same, that the cause of the death was acute peritonitis originating in tbe uterus and spreading from thence to the Fallopian tubes and thence to the peritoneum generally.

The accused took the stand in his own behalf and testified that Mrs. O’Brien called at his office for medical treatment on Wednesday, July 19th, about 10:30 o’clock in the morning, and complained of a pain in her right side, which she had felt for a year or two before. When she got into the private office for the purpose of having an examination made relative to this pain in her side, she informed the accused that she had passed her menstrual period two or three days and wished him to ascertain whether she was pregnant. He placed her upon an' operating table, found a soreness over the right ovary, and found she was not pregnant. He gave her an emmenagogue and some salacetdn tablets and she left. There was no request that he produce a miscarriage and nothing was inserted in the uterus. He heard nothing from her ■until Sunday evening, following,, between Y and 8 o’clock, when he received a telephone call from Mr. O’Brien requesting him to come and see his wife, because the pain in her side was worse. He went there and was informed that the pain had subsided, and that the tablets he had given on Wednesday had brought about menstruation, and he came .away without giving medicine or treatment of any kind. There were others present all the time. On Monday evening he was again called by telephone and he arrived at the O’Brien house between Y and 8 o’clock. He found Mrs. O’Brien quite a sick woman, temperature 101-|, pulse up near 100, respiration and heart action bad, and she complained of pain in her side extending across the abdomen. The abdomen was swollen or puffed up and there was tenderness to the touch. . He washed out the uterus with hot water and alcohol, her husband holding the lamp for him. The-fluid returned clear and without odor. He left some instructions, promised to come in next day, was prevented by something,- aiid 'Tuesday evening Mr. O’Brien again called him by telephone, and he came and found Mrs. O’Brien very sick; temperature 1044*, pulse about 150', abdomen swollen, distended, and sensitive to the touch, respiration rapid, short, and labored, like one in distress. He told two women who were in the house and also told Mr. O’Brien he did not think there was any chance for Mrs. O’Brien to get well, but she might live a little while, a day or so. He prescribed some fat-free tincture of digitalis and said to Mr. O’Brien: “If your wife is alive in the morning let me know and I will come down again.” In the morning, about 7 o’clock, Mr. O’Brien told him that they had engaged Dr. Dean.

1. It is contended that the refusal of Dr. Dean to treat the patient until he procured from her a history of the case, either to enable him to treat her or in his own protection, was such coercion of the patient or such inducement as to render incompetent not only what she then and there told Dr. Dean, but all dying declarations thereafter made by her at the hospital to the same effect and under the same influence. It is argued that, having this origin, the dying declarations were tainted, no matter how frequently repeated thereafter, because of the nature of the inducement held out, the feeble condition of the declarant, and because it is shown by evidence that a pex*son in this advanced stage of peritonitis, when septicemia has already set in, is not sufficiently conscious or intelligent to make a competent dying declaration. If the testimony relating to her mental condition were without dispute, and if the statement made to her by Dr. Dean was plainly a threat or inducement for her to make a charge against the accused, and it appeared she was still in that condition when she made the dying declarations and still laboring under the duress or inducement of what Dr. Dean said to her, it would have been the duty of the trial court to exclude the dying declarations. But that was not the case. The statement of Dr. Dean did not suggest that she charge the accused with any crime. It was a very proper request for bim to make under tbe circumstances. It probably had influence in inducing her to make disclosure and to tell the truth. But that was merely incidental, and a charge against the accused was not the direct result of the request at all in case the accused had done nothing wrong or criminal. Several witnesses who saw, and talked with, Mrs. O’Brien at the hospital prior to and at the time of the dying declarations testified to her mental competency in no uncertain language. Under such circumstances the trial court would not be justi- , fled in excluding the dying declarations, but very properly admitted them in evidence, instructing the jury concerning the_same as follows

“In considering the statements made by Mrs. O’Brien on the day of her death, you should consider the fact that dying •declarations constitute an exception to the general rules of evidence. They are in the nature of hearsay or second-hand evidence, and although for reasons of public policy, as well as because of the difficulty of obtaining better proof of the fact, they are under certain circumstances admitted in evi..dence, they do not have all the guarantees which surround evidence given under oath in a court of justice. It is assumed that being made in extremity, when the party is at the point of death and believes that all hope of the world is gone, ' they have some guarantee of their truth in view of the solemnity of the occasion or such as an oath in court would have. But it is clear that their value as evidence rests upon an assumption, and hence it is that while the law recognizes the necessity of admitting such proof on a par with an oath in a court of justice, it does not and cannot regard it as of the same value and weight as the evideneé of a witness given in a court of justice under all the tests and safeguards which are there afforded for discovering the truth, for the accused has the opportunity in court of more fully investigating the truth of the evidence by means of cross-examination, which the defendant is denied in the case of a dying declaration, and the jury have the opportunity of observing the demeanor of the person while the testimony is being given from the stand. The power of cross-examination-is quite as essential to the process of eliciting the truth as is the obligation of an oath, and where the life or liberty of the defendant is at stake the-absence of the opportunity for cross-examination is a serious deprivation, which differentiates in nature and degree the evidence of a dying declaration from that which is direct and given upon the witness stand. The jury should not receive the impression that however admissible in evidence the dying statement is, it is as valuable or as authoritative for the purpose of proving the defendant’s guilt as though this same evidence had been given by a witness in a court of justice with every opportunity to the defendant to investigate its truth by means of cross-examination.

“The mere fact that these statements have been admitted in evidence by the court is not in any way binding on yon in your deliberations. You are at liberty and it is your duty to determine for yourselves whether the necessary facts have been established beyond a reasonable doubt by the evidence in this case which are a foundation for the consideration of these statements in evidence by you. These necessary facts are: First, that the statement was made voluntarily, at a time when Mrs. O’Brien knew and was fully conscious of the fact that she was in a dying condition. Second, that such statements were made at a time when she was fully conscious of all that transpired and fully understood the meaning and import of the questions and answers, and that her mind at that time was in such a condition that she was in such possession of her reasoning faculties as to entitle her declarations to credit at your hands, and that she fully understood and comprehended all of the facts, circumstances, and transactions dealt with in those statements. Third, that at the time the statements were made she was under no duress or compulsion, but that the statements were made freely and voluntarily by her. Fourth, that the statements were hex’s and not the statements of any other party. If you should find that any of these necessary facts just set forth are lacking, you will disregard entirely those declarations. The mere fact that the declarations have been admitted in evidence hy the court does not in any manner determine for the jury anything as to the weight or credibility of these statements. You are the sole judges as to the weight and credibility to .be given to these dying declarations under the rules that have just been stated, and if you find from the evidence that at the time said state-, ^ments or declarations were alleged to have been made Mrs. O’Brien was in such a mental condition as to not comprehend and understand all of the answers and the questions, or the •import of the answers "and questions, 'or if you find at that time she did not have such possession of her reasoning facul-. ties as to entitle her declarations to credit, or if you find that such, declarations were not freely and voluntarily given, but were given under coercion or compulsion, you are to disregard these declarations in arriving at your verdict. In arriving at a determination of this question you will take into consideration all the surrounding facts and circumstances as 'disclosed to you by the evidence in this case. In determining the weight or credibility to be given to these dying declarations, less weight and less credibility should be given to a declaration obtained from a person in extremis by means of leading questions than to a statement which is voluntarily made by the same person in narrative form. In considering these declarations you should take into consideration the manner in which the statements were obtained, whether they were narrative statements of facts or whether the statements were elicited by means of questions, and you should also take into consideration the form and nature of these questions as disclosed to you by the testimony, and if from the testimony you believe that the declarations are in reality statements of someone else, put into the mouth of • Mrs. O’Brien by other parties, and not the statements of Mrs. O’Brien freely and voluntarily made, then you should disregard these statements in arriving at your verdict. It must appear with a great degree of certainty that the statements attributed to Mrs. O’Brien are in fact the statements made by her and not those of some other person. In determining what weight you will give to these dying declarations you must consider whether these declarations were induced by fear, or because of the fact that Dr. Dean had said to Mrs. O’Brien on the morning of the day that the statements were made that he would not treat6 her unless she made a full and complete statement to him; if these matters were in the mind of Mrs. O’Brien, and if they influenced her at the time of making these declarations to such a degree as to operate as a compelling force or reason for making these declarations, so that these declarations were not made freely and voluntarily, but were made under coercion; if that be your findings, you should wholly disregard these declarations in arriving' at your verdict.

“On the other hand, if you are satisfied beyond a reasonable doubt that these statements were made voluntarily, not under any duress or coercion or compulsion, when Mrs. O’Brien was fully conscious that she was in a dying condition, and when she was in such mental condition that she fully understood the meaning and import of the questions and answers, and that her mind was in such a condition at that time that she fully understood and comprehended all the facts, circumstances, and transactions relating to her condition and to the events which had taken place during the past week, and that these statements were her statements and not those of some ■other person, then you will give consideration to these dying declarations and give them such weight as you believe them ■entitled to receive after considering all the facts and circumstances in the case.”

These instructions are so proper to such a situation as to be well worth preserving in the reports. It follows that the first, second, and third assignments of error .covering the first, second, and third exceptions must be overruled.

2. Drs. Dean and Donovan were in attendance on Mrs. O’Brien and learned of the facts in the case by reason of their being in attendance. This information so acquired by them and each of them was necessary to enable them to prescribe for her. Each was sworn as a witness for the state and testified concerning her mental capacity at the time she made the declarations mentioned, as to the symptoms observed and treatment given her, and also to what was discovered in the autopsy conducted by them upon the body of Mrs. O’Brien on July 26, 1911. Sec. 4075, Stats., as amended by ch. 322, Laws of 1911, provides:

“No person duly authorized to practice physic or surgery shall be permitted to disclose any information which he may have acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician or to do any act for him as a surgeon.”

Before the amendment of 1911 the -words “shall he compelled” appeared in this statute instead of the words “shall he permitted,” as the statute now reads. The amendment of 1911 brought sec. 4075 more nearly in form with sec. 4074, relating to confessions to clergymen, and with sec. 4076, relating to communications by client to attorney.

The learned attorney general tabes the broad ground that this statute has no application to criminal prosecutions. He cites authority to the effect that “the purpose of the statute ... is to protect the patient and not to shield one who feloniously tabes his life. The authorities uniformly support this position.” This question was mooted but left undecided in Smits v. State, 145 Wis. 601, 130 N. W. 525. We leave the question still open and undecided.

Sec. 4078d, Stats. (Laws of 1905, ch. 149), provides:

“Ho person shall be excused or privileged from testifying fully under oath in any prosecution brought under the provisions of secs. 4352 or 4583 of the Statutes of 1898 or for any of the causes mentioned in either of said sections when so ordered to testify by a court of record or any judge thereof; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which such person may so testify or produce evidence, except for perjury committed in giving such testimony.”

This prosecution is under sec. 4352 mentioned. ' It will be observed that the opening sentence of this section is broad enough to sweep away all privilege in such cases. Whether it should be interpreted and applied as broadly as its words might indicate, need not be deeided here. All that is necessary to consider in the instant case is whether the provisions of this section tabe away, in prosecutions for abortion, the privilege conferred by sec. 4075, as amended by ch. 322, Laws of 1911. We thinb it does. .Counsel for accused seeb to limit the scope of sec. 4078d by the concluding sentence of that section, which provides that no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which such person may so testify or produce evidence. The effect of such construction would be to limit the sweeping words contained in the first sentence of the section to the privilege against self-incrimination. This we cannot do. It restrains the statute unduly. The more reasonable interpretation is that the privilege against self-incrimination and the professional privilege of a physician are both taken away by sec. 4078<f, but in order to render it valid and constitutional'as to the first, the legislature added tire last sentence in the nature of a proviso. Tins immunity from prosecution on account of anything which the accused is compelled as a witness to disclose is provided for in actions to recover public money by ch. 85, Laws of 1901; in actions to recover license fees, taxes, penalties, or forfeitures, by ch. 447, Laws of 1905; in actions relating to miscarriage or abortion, by ch. 149, Laws of 1905, which is sec. 4078dL It also occurs in the so-called anti-trust law, sec. 1791 j ei seg., Stats. (Supp. 1906). In the latter case the particular privilege against self-incrimination is mentioned, that privilege taken away, and immunity from prosecution given in its stead. In sec. 4078d this particular privilege is not mentioned, nor is the immunity confined to an accused person, but all privilege is apparently abolished as to all persons in respect to such criminal prosecution. Because of the nature of the crime and the necessity of resorting to medical evidence in order to establish its commission, we are satisfied that the privilege accorded by sec. 4075, Stats., as amended by ch. 322, Laws of 1911, is, in cases like this, taken away by sec. 4078<7. Assignments of error 4, 5, 6, and 7, covering exceptions 4, 5, 6, and 7, are therefore overruled.

3. Drs. Ravenel, Bardeen, and Bunting were not licensed to practice as physicians in this state. Dr. Ravenel is a director of the State Hygienic Laboratory and professor of bacteriology in the University. Besides teaching, his work in-''-eludes examination, of bacteriological specimens. ITe bas an M. I). diploma from a South Carolina university and has -done post-graduate work at the University of Pennsylvania, .at the Pasteur Institute in Paris," and also in Germany and Italy. He has practiced medicine and surgery in South Carolina, also in Pennsylvania. He testified to the effect that the tube of pus taken from the abdominal cavity of deceased ■contained the bacteria known as streptococci and he found bacterial indication of intense infection in the parts submitted to him for examination.

Dr. Bardeen is dean of the medical college at the State University, professor of anatomy and embryology. He has had experience in laboratory work and' at clinics and hospitals. He made an examination which he detailed at great length, and was of opinion that pregnancy had taken place ■five or six weeks prior to death.

Dr. Bunting is professor of pathology at the University •.and specializes in histology and bacteriology. He has had practical experience as medical house officer at Johns Hopkins Hospital and has taken part in many post-moriem examinations.

Hone of these gentlemen had any license or certificate of registration 'as a physician in this state. Their testimony is ■challenged as incompetent under sec. 1436, Stats., as amended (Laws of 1903, ch. 426, sec. 8), reading as follows:

“Ho person practicing medicine, surgery or osteopathy •shall have the right ... to testify in a professional capacity as a physician, or surgeon, or insanity expert in any case, unless he or she holds a license -from the- Wisconsin Board of Medical Examiners, or the certificate of registration herein-before referred to, with a diploma from a reputable medical ^college or-society or a certificate of membership in a medical society, and has been duly recorded as a practitioner in the state of Wisconsin; provided, that nothing in this act contained shall be construed as restricting any court in a criminal action from receiving the testimony of any person as a ’witness.”

The gentlemen mentioned were not within the statute-quoted, because they were not persons practicing medicine,, surgery, or osteopathy, and they did not testify in a professional capacity as physicians, surgeons, or insanity experts.. The proviso of the statute would also remove the disqualification theretofore mentioned so far as criminal cases are concerned. The mere fact that the science of medicine covers,, includes, or requires some knowledge of bacteriology, or chemistry, or botany, or biology, or embryology would not exclude-an expert in either of these sciences under sec. 1436, as-amended by sec. 8, ch. 426, Laws of 1903. Assignments of error 8, 9, and 10, covering exceptions 8, 9, and 10,' must be-overruled.

4. Upon the trial counsel for the defendant called to the-witness stand the husband of the deceased and propounded to him the following question: “I will ask you, Mr. O’Brien,, whether or not during the latter part of that week you had sexual intercourse with your wife?” On objection by the-state this testimony was excluded. We think this ruling was-correct, because an affirmative answer- would not raise any material issue or controvert evidence offered by the state upon any material point. It is only by the most strained inference-that counsel for accused are able to imagine any contradiction. In her dying declaration Mrs. O’Brien said that her--sickness followed the removal of the tube. In order to make-this testimony relevant we must presume that sickness to the point of disability immediately followed the removal of the tube. The witness said no such thing. On the contrary, from both declarations, taken together, it is apparent that severe or acute sickness did not set in until Sunday night. The testimony of the defendant shows that he was called to-see her again on Sunday evening and found her sitting up- and in such condition that he came away without offering to-give her medicine, treatment, or examination. Thus w’e-have the deceased, after the week had passed, in the condition. last described. Under such circumstances the question proposed was entirely irrelevant to the guilt or innocence of the accused. Assignments of error 11 and 12, covering exceptions 11 and 12, are therefore overruled.

We find no error in the rulings of the court below so far as such rulings are presented by the exceptions taken and certified to this court. The merits of the case are not before us and we express no opinion thereon. The cause will be remanded to the circuit court for further proceedings according to law.

By the Court. — It is so ordered.