This is a prosecution for rape. Defendant was found guilty of rape in the second degree and sentenced for a term of 25 years in the state penitentiary. He has appealed from the judgment of conviction. The material facts are: — In 1921 one Swehla operated a farm in Walsh county. With him lived his wife and his young daughter, aged six years. During the year defendant, then aged 23 years, worked for Swehla as a farm hand. This employment continued with some intermission, until about the month of April, 1922, when it was abrupted through some trivial disagreement. Defendant, however, remained in the neighborhood for several weeks. Shortly before defendant left, the young daughter of Swehla evidenced signs of venereal disorder. Her parents caused an examination to be made by physicians. It was discovered that she was suffering with syphilis. Defendant was arrested for the crime of rape upon this young daughter. The first trial resulted in a disagreement. In this, the second trial, held in Grand Forks county, commencing on June 14th, 1923, the daughter was a witness. Her testimony was to the effect that on two different occasions, once in the cow barn and once in the horse barn, the defendant attempted to have, or did have, partial sexual intercourse with her. Testimony was also afforded through physicians and scientific agencies that the daughter was afflicted with syphilis in her private parts, perhaps occasioned by attempts at sexual intercourse.
After defendant was arrested and while he was confined in the
county jail, before hearing or trial, the sheriff, in whose custody defendant was, received rumors to the effect that defendant was affected with a venereal disease. Accordingly, he called a physician for the purpose of examining defendant in order that he might protect himself as well as the prisoners if defendant was so affected. He called the physician without defendant's request but so far as defendant knew the physician was brought over for the purpose of treating him in the event that it was discovered that he required treatment. The physician who was called testified that he examined defendant for the purpose of determining whether he had a venereal disease; that he was called for that purpose by the sheriff. The physician advised defendant that his understanding of the law was that if he made the examination he (the physician) could not divulge the knowledge that he gained. The physician further testified that he went there for the purpose of treating defendant professionally if he was infected. The physician examined defendant, took a specimen of his blood, which was sent away for laboratory test. The report thereon was to the effect that defendant was afflicted with syphilis. As the sheriff testified, this physician subsequently treated defendant. Defendant did not testify.
Upon this appeal the major contention made by the defendant is that the trial court erred in receiving the testimony of the physician concerning his examination made of the defendant upon the ground that such testimony was privileged and further violated defendant's constitutional rights.
Opinion.
The statute provides that a physician or surgeon cannot, without the consent of his patient, be examined as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. Comp. Laws 1913, § 7923. A further statute provides that the rules of evidence in civil cases are applicable also in criminal cases except as otherwise provided in the code of criminal procedure. Comp. Laws 1913, § 10,838.
The state justifies the admission of the physician's evidence upon the ground that the physician was not called for the purpose of treating defendant but for the purpose of protecting the sheriff and those
under his charge against contagious diseases pursuant to a power possessed by him under State Health Regulations; that defendant voluntarily consented to the examination; and that, in any event, the testimony received does not show that defendant was entitled to the statutory exemptions concerning a privileged communication for the prime reason that the testimony concerned was not obtained in order to enable the physician to prescribe or act for the defendant as his patient and for the secondary reason that the statute above quoted is not applicable in criminal actions.
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This is a prosecution for rape. Defendant was found guilty of rape in the second degree and sentenced for a term of 25 years in the state penitentiary. He has appealed from the judgment of conviction. The material facts are: — In 1921 one Swehla operated a farm in Walsh county. With him lived his wife and his young daughter, aged six years. During the year defendant, then aged 23 years, worked for Swehla as a farm hand. This employment continued with some intermission, until about the month of April, 1922, when it was abrupted through some trivial disagreement. Defendant, however, remained in the neighborhood for several weeks. Shortly before defendant left, the young daughter of Swehla evidenced signs of venereal disorder. Her parents caused an examination to be made by physicians. It was discovered that she was suffering with syphilis. Defendant was arrested for the crime of rape upon this young daughter. The first trial resulted in a disagreement. In this, the second trial, held in Grand Forks county, commencing on June 14th, 1923, the daughter was a witness. Her testimony was to the effect that on two different occasions, once in the cow barn and once in the horse barn, the defendant attempted to have, or did have, partial sexual intercourse with her. Testimony was also afforded through physicians and scientific agencies that the daughter was afflicted with syphilis in her private parts, perhaps occasioned by attempts at sexual intercourse.
After defendant was arrested and while he was confined in the
county jail, before hearing or trial, the sheriff, in whose custody defendant was, received rumors to the effect that defendant was affected with a venereal disease. Accordingly, he called a physician for the purpose of examining defendant in order that he might protect himself as well as the prisoners if defendant was so affected. He called the physician without defendant's request but so far as defendant knew the physician was brought over for the purpose of treating him in the event that it was discovered that he required treatment. The physician who was called testified that he examined defendant for the purpose of determining whether he had a venereal disease; that he was called for that purpose by the sheriff. The physician advised defendant that his understanding of the law was that if he made the examination he (the physician) could not divulge the knowledge that he gained. The physician further testified that he went there for the purpose of treating defendant professionally if he was infected. The physician examined defendant, took a specimen of his blood, which was sent away for laboratory test. The report thereon was to the effect that defendant was afflicted with syphilis. As the sheriff testified, this physician subsequently treated defendant. Defendant did not testify.
Upon this appeal the major contention made by the defendant is that the trial court erred in receiving the testimony of the physician concerning his examination made of the defendant upon the ground that such testimony was privileged and further violated defendant's constitutional rights.
Opinion.
The statute provides that a physician or surgeon cannot, without the consent of his patient, be examined as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. Comp. Laws 1913, § 7923. A further statute provides that the rules of evidence in civil cases are applicable also in criminal cases except as otherwise provided in the code of criminal procedure. Comp. Laws 1913, § 10,838.
The state justifies the admission of the physician's evidence upon the ground that the physician was not called for the purpose of treating defendant but for the purpose of protecting the sheriff and those
under his charge against contagious diseases pursuant to a power possessed by him under State Health Regulations; that defendant voluntarily consented to the examination; and that, in any event, the testimony received does not show that defendant was entitled to the statutory exemptions concerning a privileged communication for the prime reason that the testimony concerned was not obtained in order to enable the physician to prescribe or act for the defendant as his patient and for the secondary reason that the statute above quoted is not applicable in criminal actions.
We are of the opinion that the trial court erred in receiving the physician's testimony concerning the defendant's examination made while he was in custody and that the state's position upon the record cannot be justified. The record is insufficient to justify any inference that the defendant voluntarily consented to his examination so as to waive the protection of the statute. The physician's testimony, taken in connection with the testimony of the sheriff, discloses that he attended defendant as his patient and from information gained by his examination of defendant he thereafter prescribed and acted for defendant as his patient. In other words, the record sufficiently shows that the physician consulted defendant as a patient in a professional character, and that the consultation included the purpose of rendering curative or alleviative treatment for the defendant. See 5 Wigmore, Ev. 2d ed. § 2382. The physician's statements made to the defendant concerning the character of his call served to advise defendant and to indicate to him that the consultation would be of a professional character. Upon the record the situation was not similar to the case where a physician was called to examine a defendant while in custody and where the defendant was told that the physician had been sent by the prosecuting attorney for the specific purpose of examination. People v. Glover, 71 Mich. 307, 38 N.W. 874. Nor to a situation where a physician testifies concerning an admission made by defendant in a non-professional transaction or occurrence. See State v. Werner, 16 N.D. 83, 93, 112 N.W. 60. On the contrary, the record presents a situation more comparable to the case where a physician, called for the purpose of ascertaining, for a railway company, the condition of the plaintiff, proceeded to advise and administer treatment and thus to assume the relation of physician and patient. Battis v. Chicago, R.I. P.R. Co. 124 Iowa, 623, 100 N.W. 546. Accordingly, upon this record we are of the opinion that the examination and consultation had by the physician, pursuant to the representations made, advice given, and action taken, disclosed a purpose to act in a professional capacity so as to create the relation of physician and patient between the doctor and defendant. Thus the inhibition of the statute applies. See Epstein v. Pennsylvania R. Co. 250 Mo. 1, 48 L.R.A.(N.S.) 394, 408, 156 S.W. 699, Ann. Cas. 1915A, 423; Booren v. McWilliams,26 N.D. 558, 577, 145 N.W. 410, Ann. Cas. 1916A, 388; Auld v. Cathro, 20 N.D. 461, 32 L.R.A.(N.S.) 71, 128 N.W. 1025, Ann. Cas. 1913A, 90; Massachusetts Mut. L. Ins. Co. v. Michigan Asylum,178 Mich. 193, 51 L.R.A.(N.S.) 22, 144 N.W. 538, Ann. Cas. 1915D, 146; Price v. Standard Life Acci. Ins. Co. 90 Minn. 264, 95 N.W. 1118; 40 Cyc. 2385. It will serve no useful purpose through reasons of expedition to consider the beneficent or harmful results of the statute in either protecting the rights of liberty or inhibiting proofs of crime. The statute is mandatory in its character. It is the duty of courts to apply this statute when facts evidence themselves to justify its application. In our opinion the physician's testimony as received was privileged and inadmissible. A new trial must be granted. It is so ordered.
BIRDZELL and JOHNSON, JJ., concur.