State v. Depoister , 21 Nev. 107 ( 1891 )

I am unable to agree with my learned associates in the conclusion reached by them in this case.

If we are at liberty to consider the sufficiency of the evidence given upon the trial, it seems open to grave question as to whether the defendant was proven guilty, beyond reasonable doubt, of the crime of which he has been convicted. It seems to me that the evidence, as reported, preponderates so greatly against the verdict, that it must have been the result of passion or prejudice.

The defendant was charged with a most heinous offense; one that would naturally arouse the indignant feelings of a community to such an extent as to render it quite probable that they were communicated to the jury, and secured a conviction upon evidence that would have been entirely insufficient in other cases. Lord Hale's remark, that such an accusation is one easily made, hard to prove, and still harder to be defended by one ever so innocent, has been often repeated, and acted upon, since, by courts all over the land. Iowa has found it necessary to enact a law, forbidding a conviction for the crime of rape upon the testimoney of the prosecutrix alone. (State v. McLaughlin, 44 Iowa 82.) InGazley v. State, 17 Tex. App. 267, a conviction upon testimony strikingly like that given in this case, was reversed as against the evidence. The opinion also shows how little reliance should be placed upon medical testimony, such as was given in the case at bar. Other courts have often set aside verdicts in rape cases upon similar grounds. (People v. Benson,6 Cal. 22; People v. Hamilton,46 Cal. 540; People v. Brown, 47 Id. 447;People v. Ardaga, 51 Id. 371;People v. Hulse, 3 Hill 309;Mathews v. State, 19 Neb. 330;State v. Spidle, 22 Pac. Rep. 620;State v. Burgdorf, 53 Mo. 65, and numerous others.)

Judging from the evidence, the child's associations had not been such as were likely to leave her mind us innocent of all knowledge of such things as we generally expect children of her age to be. She testifies that the assault was committed in her mother's home, on Thursday, the 20th day of June, 1889; and that before they had time to adjust their clothing, the mother returned and was let in by the girl. There seems to have been nothing, however, to arouse the mother's suspicions of anything wrong, and she had none. The prosecutrix made no complaint, and showed no signs of injury, until two days thereafter, when she complained of being chafed, which was attended to by the mother. The next day she complained more, and walked in a peculiar manner, but did not know what was the matter with her, and made no complaint of ill-usage. Ten days thereafter a physician was called, who determined that she was suffering with the gonorrhea. Some time after this she charged this offense upon the defendant, who was her mother's brother. No attempt, however, was made to prosecute him, until August 4th, when her stepfather swore to a complaint in the justice court, and he was arrested. Upon the preliminary examination her testimony was taken briefly, in answer to the most leading questions by the district attorney. The defendant was unrepresented by counsel, and there was no cross-examination; nor was any attempt made by any one to ascertain her competency as a witness, within Gen. Stat. Sec. 3402. The only evidence tending to corroborate her in the slightest degree was that of the physician, who testified that he found the vagina unnaturally distended, and was of the opinion that she had the gonorrhea; that this distension might happen from other causes than sexual connection; and that he made no microscopic examination to determine whether she had the disease mentioned.

The defendant's counsel contends that this, at most, shows only an attempt to commit rape, and I feel justified in saying that this contention is fully borne out by the evidence. The girl does not testify to anything more than an attempt, and the circumstances are conclusive that this attempt, if made, was not successful. That a full-grown man could succeed in penetrating the body of a child of that age, and there be no cries or tears, no complaints, and no signs of distress, is, it seems to me, contrary to both reason and experience. It is incredible that she would not cry out from the pain that would inevitably be inflicted by such violence, and exhibit some signs of suffering that could not be concealed.

The medical authorities agree that in such a case there would be great laceration, a flow of blood, and much pain and suffering produced upon the victim. (3 Whart. S. Med. Jur. Secs. 219, 220.) The evidence inBurk v. State, 8 Tex. App. 336, shows what could be expected in such a case. "A full and complete connection between an adult male and a child under twelve years of age is, on the first attempt, manifestly impossible," (3 Whart. S. Med. Jur. Sec. 218,) and it must be still more impossible with a child only seven.

The testimony of the physician concerning the child's diseased condition, while doubtless going very far with the jury, was really entitled to but very little weight, for the reasons: (1) It was not shown that the defendant had the gonorrhea — a most important consideration. (2) The disease might have been communicated to her by some other person, or in some other manner than by sexual intercourse. (3 Whart. S. Med. Jur. Sec. 222.) (3) Other diseases could easily be mistaken for gonorrhea. Upon this lust point, in section 223 of the last quoted authors, it is said: "Leucorrhoea and gangrenous inflammation of the vulva are diseases which often arise spontaneously in young children, especially of the poorer class, and are due to bad diet, uncleanliness, scrofulous taint, and epidemic influences. In the minds of anxious relatives they may awaken suspicions of violence with intent to commit rape, and sometimes form the occasion for criminal prosecutions against innocent persons, for the sake of gain. Leucorrhoea may be easily mistaken for gonorrhea, for the discharge in the two diseases is nearly similar, and the local symptoms are so much alike as to render a positive opinion in legal cases, rather hazardous." And again (section 227): "Within the last few weeks a child of nine years of age was brought to me, upon whom it was suspected that violence had been inflicted. A careful examination afforded evidence that the case was simply one of vaginitis. There was complete absence of any indication of violence, for, although it can scarcely be believed to be possible that sexual entrance into the vagina of an infant, could, under any circumstances, be perpetrated, yet in the attempt much contusion of the young and delicate soft partsmust have ensued, had it been made." Many instances of this kind are given in the books, where the parents' erroneous suspicions have even been confirmed by the hasty and ill-considered opinions of physicians, given without making a proper examination. Cases are by no means rare, where the necessity of accounting for the contraction of what was supposed to be venereal disease, has, under the persistent questioning and threats of anxious relatives, led the child into accusing some wholly innocent person of tampering with her. (3 Whart. S. Med. Jur. Sec. 229.)

Quite possibly this was the case here. It was only after the physician was called, and he had pronounced the disease gonorrhea, that the accusation was made against the defendant, and, apparently, not for some days after this. The necessity then existed of accusing some one, and it is quite evident that had it not been for this necessity, the assault, if it was really made, would never have been made known by the child. The admission of the stepfather's affidavit made in the justice court, showing that he believed the defendant guilty, was very prejudicial to his case, although its admission, as against the objections urged, was probably not error. The same may be said of the evidence concerning the particulars of the assault, as related by Bertha to her mother, when she finally accused the defendant of the offense. Such statements were mere hearsay, and their admission was considered sufficient to call for the reversal of a conviction for the same kind of an offense in State v. Campbell,20 Nev. 122, and doubtless would have worked the same result here, had the testimony been particularly objected to. But, although it was not, and consequently its admission was not error, it was equally as prejudicial to him as though it had been admitted against his most strenuous opposition, and probably goes far towards accounting for the verdict. For these reasons I think the conviction should be set aside as contrary to the evidence.

I agree that under the great weight of authority construing statutes similar to our own, the depositions taken upon the preliminary examination were sufficiently proven to admit them as evidence in the case. The authentication required by Gen. Stat. Sec. 4036, seems to be the signing by the witness and testing by the magistrate, as previously provided for in the section, and which had been done here. For the same reason, the oral testimony showing that the witnesses were examined in the presence of the defendant, etc., was properly admitted.

Dr. Hanson's testimony should not have been received.

Section 4576, Gen. Stat., makes the rules for determining the competency of witnesses in civil cases applicable to criminal cases. Section 3406 provides: "A licensed physician or surgeon shall not, without the consent of his patient, be examined as a witness as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient." The information concerning which he must not be examined, includes not only knowledge received from the lips of the patient, but also from the statements of others who surround him at the time, or from observation of his appearance or condition. (Grattan v. Metropolitan Co., 80 N. Y. 297.)

The intent of the statute in making such information privileged, "was to enable a patient to make known his condition to his physician without the danger of any disclosure by him, which would annoy the feelings, damage the character, or impair the standing of the patient while living or disgrace his memory when dead." (Pierson v. People, 79 N. Y. 434)

But notwithstanding the quotations made by my associates from the opinions in Pierson v. People,supra, in which it was held that the New York statute, of which ours is a substantial copy, did not apply to a case of murder by poisoning, and that consequently the physician's testimony was admissible, I do not understand them to hold that the statute is not applicable here, but that the ruling in admitting the testimony is sustained upon the ground that such "consent" to the physician's testifying had been given, us made it competent.

The statute reads that the physician "shall not without the consent of his patient, be examined as a witness," etc.

There is no pretense here that the "patient" had given this consent, but its admissibility is placed upon the ground that the patient's parents, stepfather and mother, have given implied consent to his testifying, and this, of course, must necessarily assume that the parents have the power to give the required consent, and to waive, for their children, the protection of the statute.

But that they do not have this power seems to me reasonably clear from both the letter and spirit of the statute. It does not say that the physician's testimony shall not be admitted without the consent of the patient, or his parents or guardian, or executor or administrator, but the patient alone is mentioned.

If it be objected that under such construction his testimony would always be lost where the patient was too young to give consent or was insane or dead, it may be replied that this is just what the statute was intended to do. It intended to place the information so obtained upon the same footing as communications between husband and wife, communications to an attorney, or confessions to a clergyman or priest. Such evidence is always to be incompetent, except in the single instance of where the party in whose interest it is excluded, is able to, and does, give his free consent to its divulgence.

In Westover v. Insurance Co., 99 N. Y. 56, the action was brought upon a life insurance policy issued to the plaintiff's testator. Upon the trial the plaintiff called a physician who had attended the deceased during his life-time, and asked him certain questions concerning the condition in which he had found him. To this the defendant, the insurance company, objected that the evidence was incompetent and privileged under the statute. This of course, raised the question whether, the patient being dead, his executor could give the consent necessary to authorize its admission, and it was held he could not. In the course of the opinion the court says: "There does not seem to be left any room for construction. The sections are absolute and unqualified. These provisions of law are founded upon public policy, and in all cases where they apply, the seal of the law must remain until it is removed by the person confessing, or the patient or client. * * * Whenever the evidence comes within the purview of the statutes, it is absolutely prohibited, and may be objected to by any one unless it be waived by the person for whose benefit and protection the statutes were enacted."

Nor do I understand that it has been conceded by any one that the mother could have given the consent required by the statute. Certainly, to my mind, it has not been done by the defendant or his counsel.

But admitting that the parents could give the required consent, the next question is, whether they have done so.

That there may be implied, as well as express, consent, there can be no doubt, but the evidence of this implied consent or waiver, must be distinct and unequivocal. (1 Whart. Ev. Sec. 584; Hageman Priv. Com. Sec. 151;Westover v. Insurance Co., 99 N. Y. 59.)

It is supposed that the evidence shows a determination by the parents of the child to prosecute the defendant, and that consequently they intended to waive the protection of the statute for the child. Admit the premises, and the conclusion does not by any means follow. There is no logical connection between them. If this is to be the rule, then in a case where it is supposed the evidence shows that the party to make the waiver does not desire the defendant prosecuted, then it must be presumed that he has not consented. Before we can even speculate upon such a state of facts, we must know how strong the desire for the defendant's conviction or acquittal is, how much or how little they cared for the physician's knowledge being made public, and all the other considerations that might influence them. It is sufficient to say that this would be no rule at all for the admission or rejection of evidence, and is entirely inadmissible. Nor does the fact that the mother appeared and testified upon the preliminary examination to the daughter's ailments constitute any such waiver, or consent. She appeared the same as other witnesses presumably in obedience to a subpoena — and it was not a matter of choice with her whether she would testify or not. If asked the questions, she must answer. It seems like going a good ways to hold that because she was compelled to testify, therefore her testimony constitutes implied consent to the physician making public the information obtained by him. Nothing ought to constitute implied consent that is not voluntary. But again, the testimony of the mother did not make public the information of the physician. She did not pretend to know what was the matter with the child, and the symptoms she described might have come from a dozen other sources than venereal disease. She supposed for some time that she was simply chafed. To my mind, even the assumption that, at the time of the trial in the district court, when the physician's testimony was admitted, either the child or her parents wished to prosecute the defendant, is not supported by the evidence. It is founded upon the circumstances of the stepfather having made the complaint in the justice's court, and that the mother and the child had appeared and testified upon the hearing. Weak as this foundation is, it is further weakened by the uncontradicted evidence of two witnesses that before the trial they had taken back much they had said against the defendant in the depositions, declared they had only so testified because of the threats and promises of Joseph Alexander, the stepfather, and that they would never testify against him again. That this was their feeling towards him, is further borne out by the fact that neither of them was present at the trial. If the stepfather ever had any right to consent for the girl, it was certainly lost when her own father appeared and took possession and control of her, as he had already done. But in my judgment the whole theory of implying consent from any such premises is wrong. While it may be implied as well as expressed, the implication should be based upon substantial, clear and unequivocal grounds, such as do not exist here. (See People v. Murphy,101 N. Y. 126; People v. Stout, 3 Park., Crim. R. 670.)

If the evidence of physicians ought to be received in rape cases or in criminal cases, the remedy is with the legislature. As said in Renihan v. Dennin,103 N. Y. 580: "It is probably true that the statute as we feel obliged to construe it, will work considerable mischief. In testamentary cases, where the contest relates to the competency of the testator, it will exclude the evidence of physicians, which is generally the most important and decisive. * * * But the remedy is with the legislature, and not with the courts."

But the truth is, there is just as much reason for excluding such evidence in criminal cases as in any other. The inevitable result of the statute is to exclude evidence that would often be of the highest importance, but as a matter of public policy it is considered better that such testimony should be lost, than that the confidence which ought to exist between priest and penitent, lawyer and client, and physician and patient, should be destroyed by the knowledge that they may be compelled to divulge the information so obtained from those who have placed trust in them.

The minutes of the court show that after the jury was impaneled and sworn, the defendant's plea of not guilty was entered, and they do not show that he had ever pleaded prior to that time; but, believing that the conviction should be reversed for the foregoing reasons, I have not considered this point, nor the one concerning the verdict.