State v. . Martin

*849 Adams, J. Tbe defendant’s motion to dismiss tbe action was based on tbe conception tbat tbe evidence taken as a whole was not sufficient to sustain a conviction; but in deciding tbis motion we need consider only sucb evidence as was favorable to tbe State, without special regard to tbat on which tbe defendant relied. Tbe immediate question is whether tbe evidence, when given a liberal yet reasonable construction, bad legal sufficiency to convict. If it was sufficient to support tbe charge in'either count it was not permissible to withdraw it from tbe jury. Considering tbe evidence as correctly portraying tbe circumstances under which tbe abortion or miscarriage was accomplished, we are of opinion tbat tbe verdict of tbe jury was amply justified, and tbat bis Honor properly denied the defendant’s motion. Tbe association of tbe defendant and tbe woman, their call at Dr. Mimm’s office a week before she went to her brother’s home; the defendant’s payment of one-half tbe fee charged by tbe physician who “packed something in her womb” and prescribed tbe “black medicine,” and his subsequent solicitude in urging tbis physician to attend her; tbe defendant’s visits to her in company with Dr. Mimms, together with various other circumstances were sufficiently convincing to warrant tbe jury in connecting tbe defendant with tbe unfortunate occurrence. S. v. Carlson, 171 N. C., 818; S. v. Clark, 173 N. C., 745; S. v. Bridgers, 172 N. C., 882. Dr. Mimms related tbe cricumstances attending bis first visit to Rosa Yow, described her physical condition, and testified to certain statements made by her in tbe defendant’s presence tending to implicate tbe defendant in tbe commission of tbe crime. To tbis evidence tbe defendant excepted on tbe ground tbat it divulged information which tbe witness bad confidentially acquired in bis professional capacity. At common law no privilege existed as to communications between physician and patient. Tbe physician, when called upon to testify, bad no right to decline or refuse to disclose information on tbe ground tbat sucb information bad been communicated to him confidentially in tbe course of bis attendance upon or treatment of bis patient in a professional capacity. Tbe public interest in tbe disclosure- of all facts relevant to a litigated issue was deemed to be superior to tbe policy of recognizing, for tbe benefit of tbe patient, tbe inviolability of confidential communications. Hence, statutes have been enacted in practically every jurisdiction making communications between physician and patient privileged from compulsory disclosure. Fuller v. Knights of Pythias, 129 N. C., 323; Smith v. Lumler Co., 147 N. C., 63; 28 R. C. L., 517. In some jurisdictions tbe privilege is absolute, and in others qualified. Our statute is in tbe latter class. “No person, duly authorized to practice physic or surgery, shall be required to ’ disclose any information which he may have acquired in attending a patient in a professional character, *850 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: Provided, that the presiding judge of a Superior Court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice.” C. S., 1798. In Smith v. Lumber Co., supra,, this statute has been construed as extending not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe. In that opinion Justice Holce further said: “And it is further held, uniformly, so far as we have examined, that the privilege established is for the benefit of the patient alone, and that same may be insisted on or waived by him in his discretion, subject to the limitations provided by the statute itself: “1. That the matter is placed entirely in the control of the presiding judge, who may always direct an answer, when in his opinion same is necessary to a proper administration of justice. “2. That the privilege only extends to information acquired while attending as physician in a professional capacity, and which information is necessary to enable him to prescribe for such patient as a physician.” 14 Wigmore, sec. 2286c. If the privilege is for the benefit of the patient alone, how can the defendant invoke its aid? Even if it be contended that the privilege was available to him on the ground that some of the communications were made in his presence, that Rosa became a party to the crime by'consenting to the abortion, that she is living, and the physician’s testimony would tend not only to convict him, but to discredit her, and that the evidence objected to was for these reasons incompetent, a complete answer is found in the proviso of the statute and in his Honor’s statement that in his discretion he not only permitted but required Ur. Mimms to testify Avhen called as a witness for the State. His Honor no doubt did so because in his opinion the testimony of Ur. Mimms was necessary to a proper administration of justice. The testimony of this witness as to statements made by the woman in the presence of the defendant was properly admitted. True, the witness said that the defendant had been drinking, and was sitting in a corner of the room when the statements were made; but he testified also that the defendant, while near enough to the woman to hear her remarks, occasionally said something himself, and that the witness, although not positive, thought the defendant was awake. It was the province of the jury to determine from the evidence whether the woman’s statements were made in the hearing as well as in the presence of the defendant, whether they were understood by him, and whether he denied them or remained silent. S. v. Bowman, 80 N. C., 437; S. v. Crockett, *851 82 N. C., 599; S. v. Burton, 94 N. C., 948; S. v. Randall, 170 N. C., 762. ¥e bave given due consideration to tbe remaining exceptions and find tbem to be without merit. His Honor presented botb tbe law and tbe evidence in sueb manner as to enlighten tbe jury concerning tbe nature, scope, and merits of all matters in controversy between tbe State and tbe defendant. We find no error, and tbis will be certified to tbe Superior Court of Forsyth County. No error.