Opinion
No. 32188.
November 2, 1936.
WITNESSES.
Where defendant, charged with assault and battery with intent to kill, testified that she acted in self-defense, having been assaulted by another who beat defendant over head, inflicting wounds treated by physician, physician's testimony that he had not treated a wound on defendant's head held admissible (Code 1930, sec. 1536).
APPEAL from the circuit court of Madison county. HON. J.P. ALEXANDER, Judge.
C.B. Greaves, of Canton, and Jack M. Greaves, of Madison, for appellant.
Dr. P.R. Greaves was appellant's physician and was not put on the stand by her. The state proceeded to place Dr. Greaves on the stand over and above the objection of the appellant, and prove that he had never treated her for a head wound.
Appellant states that this error allowed by the learned trial judge helped convict her; that Dr. Greaves should not have been permitted to testify against her, and that his testimony violated her rights; that it was privileged; that it violated section 1536, Code of 1930, and that this honorable court has held many times that a surgeon or physician shall not be required to disclose facts learned by him from a patient under his care or seeking professional advice, unless the patient permits the information to be divulged in evidence.
Appellant objected to the introduction of her own physician by the state, and she states that the court erred in so doing, and that this honorable court should set aside the verdict of the lower court, and reverse this cause of action.
Davis v. Elzey, 126 Miss. 789; Hunter v. Hunter, 127 Miss. 683; Yazoo M.V.R. Co. v. Decker, 150 Miss. 621; Powell v. Newman Lbr. Co., 165 So. 299.
Webb M. Mize, Assistant Attorney-General, for the state.
Section 1536, Code of 1930, merely declares that communications made to a physician or surgeon by a patient are privileged. The testimony of Dr. Greaves did not show any communication. He was merely asked if in May, 1935, he had had occasion to treat Nettie Sproles for any sort of head wounds. There was a general objection made to the question, which was overruled. His answer was that he had not. In the first place, a mere general objection to a question without stating wherein the incompetency lies is insufficient.
Howard v. Town of Newton, 108 Miss. 548, 67 So. 49; Boatwright v. State, 143 Miss. 676, 109 So. 710; Jackson v. State, 163 Miss. 235, 140 So. 683; Keeton v. State, 167 So. 68.
In the instant case there was nothing brought out of a privileged nature. The physician's testimony was negative. He had been called to treat Nettie Sproles for malarial fever. Nettie Sproles testified that Dr. Greaves had treated her. Therefore, the question of whether or not Dr. Greaves had treated her was an issue and the state had authority to show in rebuttal that the physician had, in fact, not treated the defendant. There was no violation of the privileged communication statute.
This is an appeal from a conviction of assault and battery with intent to kill.
The appellant's defense is that she acted in self-defense, the person (a woman) she is said to have assaulted having attacked her, and was beating her over the head with a hammer, inflicting on her several severe wounds, which she said she exhibited to a physician who treated her therefor. Over the objection of the appellant, this physician was introduced by the state; and, in answer to the question, "I want to ask you if you have ever been called, or have treated this woman here for any sort of a head wound of any kind," he replied, "No, sir." On cross-examination by the appellant's counsel, the witness said he treated the appellant for over three weeks for malaria. The objection to this evidence is that it is inadmissible under section 1536, Code 1930, which provides: "All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient." This witness was not asked by counsel for the state to disclose any communication made to him by the appellant nor whether he examined her person, and, if so, what the examination disclosed. He simply denied having been asked by the appellant to, or that he did, treat a wound on her head; in other words, he simply denied the appellant's statement that he had treated her for a "head wound."
Affirmed.