Opinion
No. 29063.
November 17, 1930.
1. WITNESSES.
Where physician investigates by direction of court or prosecuting attorney to ascertain condition of person for purposes of trial, statutory privilege does not arise (Code 1930, section 1536).
2. WITNESSES.
Where person is examined by physician at instance or with approval of officers for purpose of law enforcement, and person examined knows, or facts reasonably give knowledge, that examination is for such purpose and no wrongful means are used, statute relating to privilege is not available (Code 1930, section 1536).
APPEAL from circuit court of Yazoo county. HON.W.H. POTTER, Judge.
Frank E. Everett, of Indianola, for appellant.
The deputy sheriff, together with the owner of the plantation arrested this defendant and after his arrest he was taken to Bentonia by them where Dr. Johnson was called and the defendant taken by the deputy sheriff, and Whitehead, while under arrest, to the office of Dr. Johnson and there he was stripped, and the doctor, Whitehead, and the deputy sheriff were permitted to testify over the objections of the defendant to conditions as claimed to have been found by this examination of the defendant.
Under section 7455, Hemingway's Code of 1927, what he heard or what he found, and what he might have seen, if anything, was a privileged communication and neither he, the officer, nor Whitehead were competent to testify with reference thereto, and the testimony should have been excluded.
Section 7455, Hemingway's Code of 1927; Williams v. State, 92 So. 584; Railroad Company v. Decker, 116 So. 291; Insurance Company v. Jemison, 120 So. 180; Sec. 26, Mississippi Constitution; Williams v. State, 92 So. 584; Bridges v. State, 86 Miss. 277; Connly v. State, 106 So. 827; Orrick v. State, 105 So. 465; Robinson v. State, 108 So. 903; Burnside v. State, 110 So. 121.
Edwin R. Holmes, Jr., Assistant Attorney-General, for the State.
The testimony of the physician was admissible as the appellant acted voluntarily in pulling down his clothes and he voluntarily submitted to the examination.
Underwood v. State, 108 Miss. 34, 66 So. 285.
In the cases cited by appellant, the physician was in all of such cases the physician of the party objecting. The relationship of physician and patient existed. Here it does not exist. The only criminal case in which this statute has been discussed is Davenport v. State, 143 Miss. 121, 108 So. 433. That case was decided by a divided court. We do not believe that the principles of that case are applicable here, except in so far as the principle announced by Judge Ethridge that the appellant is not entitled to raise the objection.
Appellant was convicted of a statutory capital crime, the details of which we do not deem it necessary to state, and prefer not to do so because of the nature thereof. We say of them only that the testimony was ample to sustain the verdict, and that appellant's escape from the hangman must have been that the jury regarded him of subnormal intellect, and for that reason not fit for the extreme penalty, so that he received a life sentence instead.
There are several assignments of error, none of which as applied to this record are well taken. But there is one which we think is of sufficient importance to merit a written response. This alleged error is directed to the action of the court in overruling the objection to the testimony of the physician who examined appellant soon after his arrest, and is founded upon section 1536, Code 1930, section 7455, Hemingway's 1927 Code.
Appellant was arrested about three hours after the crime was committed; and, on being informed of the charge against him, he denied guilt. The sheriff then said to him: "If you haven't any sign on your underwear it would be a pretty good sign — would you mind showing me?" Appellant thereupon voluntarily opened his outer clothes in such manner that the particular underclothes referred to were exhibited to view and there was revealed what the sheriff and Mr. Whitehead, also there present, believed to be fresh blood, and, on a statement by appellant that it was something else than blood, the decision was made by the sheriff and Mr. Whitehead to take appellant before a physician for a further examination. The physician was sent for by Mr. Whitehead, who paid for the services, and appellant, still contending that the "signs" were not blood, voluntarily submitted to an examination by the physician; in fact, at the physician's request, appellant stripped so that the underclothes might be better examined, and also submitted without objection to an examination of certain parts of his body. As a result of this examination the physician, the sheriff, and Mr. Whitehead were able to testify positively that the signs were fresh blood, and also to certain other signs seen on the said parts of the body, which testimony had a distinctly damaging effect on appellant's defense.
It is not always easy to determine when the relationship of physician and patient exists, and there has been a noticeable division of opinion among courts on the subject; and this court has aligned itself with that line of authorities which inclines to the holding that, whenever the circumstances are such that the relation can reasonably and consistently be held to exist, that view of the case will be taken. However, there seems to be no dissent anywhere from the proposition "that, where a physician merely investigates by direction of the court or prosecuting attorney to ascertain the physicial or mental condition of a person for the purposes of the trial," the privilege of the statute does not arise. 5 Jones on Evidence (2 Ed.), p. 4160. We adopt that language, and hold further and by way of application to the present case that, where a person is examined by a physician at the instance or with the approval of officers of the law for the purposes of law enforcement, and when the person so examined then and there knows, or the facts are such as to reasonably give knowledge that the examination is solely for the purpose aforesaid, and no illegal or otherwise wrongful means are used to secure the examination or inspection, the statute is not available. We do not undertake here to state what would constitute illegal or wrongful means, that inquiry clearly not being before us; for the testimony shows without dispute that appellant voluntarily submitted to the examinations made, and without protest or objection of any sort.
Affirmed.