Opinion
No. 33975.
April 1, 1940.
1. WITNESSES.
In statutory rape prosecution, physician's testimony that defendant informed physician that a girl was "in trouble" and inquired whether physician could give her something to bring about menstruation was not incompetent under the physician and patient statute, where physician declined to have anything to do with the matter and he had never seen or had any communication with prosecutrix, since the "physician and patient relationship" never existed (Code 1930, sec. 1536).
2. RAPE.
In prosecution for statutory rape, the female is presumed to have been of previous chaste character (Code 1930, secs. 1123, 1124).
3. RAPE.
In prosecution for statutory rape where prosecutrix testified that she and defendant sat together in church, that when congregation left church she and defendant got in truck, drove to point some distance from church, engaged in act of sexual intercourse, and returned to church yard and parked truck in a different place, evidence that defendant and prosecutrix were together at night, alone and seated in the truck which had been moved from its original place, that defendant inquired of physician whether he could give a girl "in trouble" something to bring about menstruation, and that child was born, was sufficient corroboration of testimony of prosecutrix to sustain conviction (Code 1930, secs. 1123, 1124).
APPEAL from the circuit court of Neshoba county; HON. PERCY M. LEE, Judge.
J.B. Hillman and Jas. L. Mars, both of Philadelphia, for appellant.
Appellant submits that the proof does not meet the requirements of the statute defining statutory rape. The prosecutrix was not sufficiently corroborated in any material fact. In fact, that they were seen together at Bethsaida Church after the congregation had left, and that the truck which they were occupying had been moved up nearer the road from where it was left or from where it was when the B.Y.P.U. was over is no corroboration, as the testimony does not disclose any improper relationship between the appellant and the prosecutrix, and there is nothing in the evidence there that tends to show that there was any improper relationship between the prosecutrix and the appellant, but to the contrary shows that there was no improper relationship and conduct between the prosecutrix and the appellant and there was nothing in the testimony of the prosecutrix indicating in the remotest degree any improper relationship while at the church, and that if there were any improper relationship existed between the appellant and the prosecutrix, it was a distance of two miles or more from the church out of the presence and hearing of anyone.
Grogan v. State, 118 So. 627.
Appellant submits that the court erred in admitting the testimony of Dr. E.L. Laird over the objection of the appellant for the reason that the statements and testimony of Dr. E.L. Laird attempted to divulge a private communication between the defendant and Dr. Laird, which was a privileged communication, and the doctor should not have been permitted to reveal their conversation.
Appellant submits that the court erred in overruling the motion of the defendant, to exclude all the evidence offered on the part of the state and to direct the jury to find the defendant not guilty, at the end of the state's evidence, for the reason that the prosecutrix had not been sufficiently corroborated in the acts of sexual intercourse as is required by Section 1124, Code of 1930.
State v. Bradford, 89 So. 767; Gillis v. State, 120 So. 455.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
Appellant says that there is insufficient corroboration to justify his conviction. We, of course, concede that her testimony must be corroborated. We think it was. It is undisputed in this record that appellant was with this young girl on the night she said the act occurred. It is true that no one saw this act of intercourse and that it is not unusual for, as said by the trial judge: "Usually when people commit this act they do it out of the presence of others and where witnesses ordinarily are not available to testify in such cases."
The prosecutrix testified that she told appellant shortly afterwards about her condition, and this is undenied in the record. Later appellant, with this information, approached Dr. Laird, telling him that a Kilpatrick girl, who went to school at the County Line School was in trouble, that she had failed to menstruate, and that he wanted to know if the doctor could give her something to remedy this condition.
Golding v. State, 144 Miss. 298, 109 So. 731.
Appellant argues that the testimony of Dr. Laird was privileged and that he should not have been allowed to testify against appellant in this case. We submit that the relationship of physician and patient never did arise as between the doctor and the appellant. The privilege attaches only to the patient. Appellant did not ask any professional advice from the physician for his own purpose, but for someone else. If the girl were in fact pregnant and it was the purpose of the appellant to procure a miscarriage or an abortion, then his request of the doctor was a request for him to commit an offense under the laws of this state. That what the appellant said to the physician was not privileged is clearly indicated by the authorities in Underhill Cr. Ev. (2 Ed.), par. 180, page 343; State v. Smith, 99 Iowa 26, 68 N.W. 428, 61 Am. St. Rep. 219; People v. West, 106 Cal. 89, 39 P. 207; Hauk v. State, 148 Ind. 238, 46 N.E. 127, 47 N.E. 465; Babcock v. People, 15 Hun. (N.Y.) 347; Seifert v. State, 160 Ind. 464, 67 N.E. 100, 98 A.S.R. 340; 28 R.C.L. 533, par. 122; Keeton v. State (Miss.), 167 So. 68.
The appellant was convicted of the statutory crime of rape under section 1123 of the Code of 1930, and sentenced to serve a term in the penitentiary; from which sentence he appealed to this Court.
The prosecuting witness, Miss Mary Frances Kilpatrick, was about fifteen years of age, and the appellant about nineteen at the time this crime was alleged to have been committed. The prosecutrix testified that on the night of October 16, 1938, she attended a B.Y.P.U. meeting at Bethsaida Church, going with her brother in their father's truck; the brother with some other boys did not remain for the meeting, but left for a place several miles distant in the school bus in which the appellant had driven to the church. Miss Kilpatrick and the appellant sat together in church, where they remained throughout the services. When the congregation left the church the appellant and the prosecutrix got in the truck in which the latter had come to church with her brother, and the appellant drove to a point some distance from the church and stopped; whereupon he engaged in the act of sexual intercourse with her. They returned to the church yard, and parked the motor truck in a different place. Her brother returning with his companions in a short time, she accompanied him home. Although the appellant had not visited her in her home, she had met and associated with him at parties. She attended the County Line School, but lived in Neshoba county, to the north of County Line.
The prosecutrix testified that several weeks after this occurrence on the night of the meeting at the church she informed the appellant of her condition, that she had failed to menstruate; that he told her he would kill her if she revealed it; that she told no one, and her family believed she was to have an operation for appendicitis when they took her to the hospital at Philadelphia, where, on July 21, 1939, a child was born to her. She testified that her chastity had not previously been violated.
The testimony of the prosecutrix as to the removal of the truck from its original position at the church was corroborated. She was further corroborated by Jim Bounds and his sister, Lena Bounds, the last persons on the church premises, who saw Miss Kilpatrick and the appellant seated in the truck. They had also been seen together in the church.
Dr. Laird testified that early in January, 1939, the appellant came to him, saying that "a Kilpatrick girl was in trouble," and he wanted to know whether the doctor could give her something to bring about menstruation. The doctor informed him that he could do nothing in the matter. The appellant further identified the girl by saying that she "lived up there north of County Line, and was going to school at the County Line School." The physician's testimony was objected to on the ground that it was incompetent under Section 1536, Code of 1930, known as the Physician and Patent Statute.
The appellant did not testify, but he introduced certain witnesses, who testified to acts of indiscretion on the part of the young woman, one or more testifying that on two occasions they had witnessed improper intercourse on her part with two named men.
The state in rebuttal introduced witnesses to prove that no such indiscretions had occurred; and the two young men named stoutly denied ever having had improper relations with the prosecutrix.
1. It is insisted that the testimony of the physician in this case was incompetent under the Physician and Patient Statute, Section 1536 of the Code of 1930, in which contention there is obviously no merit, since the doctor specifically declined to have anything to do with the matter, because of the unlawful purpose sought to be accomplished. Moreover, this record does not disclose that the physician ever saw, or had any communication with, the prosecutrix, Mary Frances Kilpatrick. So it is quite clear that the relation of physician and patient never existed between Dr. Laird and either the appellant or Miss Kilpatrick. The language of the statute confines its operation to the physician and his patient — a relation that does not exist here.
2. It is insisted that the evidence we have detailed does not constitute sufficient corroboration of the testimony given by the prosecutrix, and that the appellant was therefore entitled to a peremptory instruction.
In a prosecution brought under Section 1123 of the Code of 1930, by Section 1124 the female is presumed to have been of previous chaste character. Under the evidence in the record the only issue of fact was on the question of chastity. The appellant did not testify, and did not deny any of the evidence offered on behalf of the prosecutrix.
The fact that they were together at night, alone and seated in the truck, which had been moved from its original parking place, the evidence given by the physician, and the birth of the child — all these are sufficient corroboration in this character of case. See Golding v. State, 144 Miss. 298, 109 So. 731.
The evidence in this case as to the commission of the act, and as to the subsequent occurrences, stands uncontradicted.
We find no reversible error in this case.
Affirmed.