*1 633 v. MOORE it dated, pre- being written, signed it was where regard place of that the law with reference contracted the parties sumed that the contract intended that the unless clearly parties it appears place, was made or where it law of the governed by place should 1$ stipulate elect or unless the parties latv of some other place, See C. 92, 8 J. pp. govern.” shall country law of another state 1051, L. Enc. U. S. Ct. 965; pp. 6 R. C. 3 964, Sup. Rep. also 126 Va. Perkins, Poole 451; L. ed. v. 450, Whart. Confl. 3d §§ 203, 182 Wis. Austin, E. Jefferis v. A.L.R. 331, 1509, S. Neb. 293, Loan v. Beale, & Co. W. Farm N. Mortg. 19 L.R.A. 78 Kan. Bank, 688, Citizens Nat. N. Sykes W. 877; 98 Pac. (N.S.) no contention is no evidenсe and case there
In this Laws of chapter evade provisions intention an North actual subterfuge making resorted that the parties contract form so as to evade opera- Minnesota contract Dakota under un- I am the of this state. the laws tion their contract in this casе the appellants disputed Minnesota note and a valid guaranteed payment guaranty Laws has no application. chapter J., concurs.
JOHNSON, MOORE, NORTH v. EARL STATE OF DAKOTA, Respondent, Appellant.
(204 341.) N. W. — admitting accused venereal Witnesses error. disease held defendant, custody, while in was examined rapе prosecution In a ascertaining request at disease, with a venereal and where the whether defendant afflicted found that lie was afflicted with a venerea! disease and where, trial, therefor, physician's at such testi- thereafter treated objection upon ground evidencе over of defendant was received in 52 NORTH DAKOTA REPORTS held, court, same privileged, the record it the trial opinion, and for receiving reasons stated erred *2 Opinion 31, 1924, filed rehearing May December on Witnesses, 33; 30, 31; Cyc, p. p. p. p. n. 2383 n. 2384 n. 23S5 p. p. n. 238S n. n.
In District Grand Forks Court, Encjlert, J. County, Prosecution for rape.
Defendаnt lias from of conviction. appealed judgment -Reyorsed and new trial granted.
II. C. for DePwjj appellant. Dahl,
T. T. State’s for Attorney, respondent. Bronson, h. J. This is was Defendant rape. prosecution C in tlie second of term rape degree sentenced found guilty in the state ITe has from judg- penitentiary. appealed yеars material conviction. The facts are: —In 'one Swehla ment of in Walsh With him farm lived liis county. wife and operated six daughter, aged years. year then young During aged for Swehla 'as farm hand. worked This con- years, employment until intermission, with some month tinued about the of April, some trivial Defendant, when it was аbrupted through disagreement: neighborhood remained for several weeks. however, Shortly Swehla left, daughter defendant evidenced young signs fore Her caused an exainination to he parents disorder. made by venereal that discovered she It was was with suffering syphilis. physicians. arrested for thе was crime Defendant rape daugh- young disagreement. first trial resulted this, ter. tlie second Porks on county, held Grand June commencing trial, 14th, witness. Her was a was to the effect on daughter in the cow barn once 'and once in occasions, different the horse two or did have, in- attempted havе, partial the defendant sexual barn, with her. was also afforded Testimony tercourse through physicians that tlie was afflicted with daughter and scientific agencies syphilis occasioned at sexual intercourse. by attempts her parts, perhaps private while confined arrested and liе was in the After defendant was STATE MOORE de- tbe in whose trial, before jail, county bearing defendant was received to the effect that affected rumors was, he called a a venereal disease. Accordingly, himself order that he protect purpose examining might affected, if lie so called as well prisoners knew far as defendant defendant’s but so request in the brought over treating The physician event that it was discovered he treatment. required for the who was called testified that he examined defendant disease; whether he had a veneral that he called determining sheriff. аdvised purpose by law if the examination (the was that he made he understanding could gained. phy- physician) divulge knowledge further, treating went testified sician *3 if he was infected. The defendant professionally which lab- took a of his was sent for specimen blood, away test. The thereon was the effect that defendant was oratory report subse- As sheriff this testified, afflicted the syphilis. defendant. treated Defendant did testify. quently the the contention major appeal Upon of the physician trial court erred the that the receiving testimony the examination made the upon ground his concerning further defendant’s violated such testimony privileged rights. constitutional
Opinion. that a surgeon cannot, The statute provides as to be examined any of his consent was. to enable to prescribe necessary the patient attending Laws 7923. A further statute Comp. § or act patient. in civil cases arc of evidence also applicable rules provides in the code of criminal provided as otherwise except criminal cases 10,838. Laws 1913, Comp. § procedure. upon admission of the physician’s justifies state
.The treat- was not called the ground sheriff those prоtecting but ing 52 NORTH DAKOTA REPORTS to a contagions pursuant power pos- bis diseases charge under against volun- him under Health that defendant State. sessed'by Negulations; examination; testi- tarily event, consented and that, received does not show that defendant entitled to the statu- communication for the primе tory exemptions privileged concerning order to enable concerned not obtained in reason that the testimony act the defendant as his prescribe secondary reason that the statute is not above emoted applicable in criminal actions. the trial court erred in
Wo are of the
receiving
the defendant’s
examination made
physician’s
concerníin.>:
'and that the
while was
state’s
record
position
be
record is insufficient
inference
justified.
justify any
cannot
consented
tliat the defendant
voluntarily
examination so
of the statute.
waive the
taken
protection
physician’s testimony,
with the
in connection
discloses that
at
as his
and from information gained
tended defendant
of defendant he thereafter
for de
prescribed
examination
acted
as his
words,
record
shows
patient.
sufficiently
consulted defendant as
in ’a
a patient
professional
and that the consultation included the
character,
rendering
alloviative treatment
curative or
defendant. See Wigmore,
ed.
statements made
physician’s
Ev. 2d
to the defendant
§
of his call
the character
served to advise
defendant and
him that the consultation
wоuld
char
indicate
the record the situation was not similar
acter.
Upon
case
*4
was called
to examine
while in
and-
was told that
the physician
the
had been
where
sent
the
by
of examination.
attorney
specific purpose
prosecuting
People
N.
BiudzRi/l I.Ch. controlling question ChRistiaNsoN, (dissenting). over trial court erred in evidence, is whether the admitting this case of Wasscrman test of tlie the objection jail. he was an the county while inmate applied Comp. Laws of this evidence is governed by admissibility § as follows: so far as reads material, which, in the cases': “A he examined as a witness cannot following person without the consent of A surgeon cannot, 'attending information acquired act the patient.” him to prescribe to enable was necеssary pre- statute the privilege According plain language the relation of arises thereby scribed *5 52 NORTH DAKOTA REPORTS un exists. of a is not to excluded is, testimony That be physician less it relation of and existed at physician appears is the information which he obtained C. L. 532. asked testify. is says: “There no as
Cyc. (40 Cyc. 2384, 2385) privilege the examination of a by person, unless such examination is made in of and a prepara- contemplation treatment.” tion in this ease is whether the relation only question
and existed at the time' the obtained the specimen test. Tf defendant's blood to Wasserman used aрplying relation then the existed
the Wasserman test is in obtained from such opinion, specimen, my But under the I not believe that this case do privileged. is when justified this court that the trial court was in error holding it held that such evidence was not The defendant privileged. burden of the relation of existed showing defend and that the p. privileged. ant done did and the evidence as to what said testify, at and to the time testi blood was obtained specimen prior the sheriff and the doctor. sheriff testified: “I was told didn’t had a venereal I had him and I that Moore disease, upstairs, I a doctor him, know whether lie did and wanted to examine not, if it was I know what to do so, would contagious, protect myself, well as The sheriff further asked testified that he prisoners.” .Moore as to whether he was or was not afflicted with venereal disease1 “I I that Moore said in don’t know whether have or not,— reply, I know.” have. I don’t he T believe And that said (the don’t sheriff) “If in this I don’t know I jail there is about anything nothing I want it in here and will or some get doctor,” wouldn’t spread effect; to that doctor the de procured asking thing whether he have this done or not; desired that at the time not have in sheriff) doctor he did mind to procure (the procurеd and said to treat the nothing .defendant a physician The doctor testified that he was about that. called the doctor could take the defendant “so he proper precautions to examine sheriff sheriff said nothing about treat protect prisoners;” *6 MOQUE ment defendant. tlie Tlie doctor bad related tlie conversation fully witb tbe defendant at testi the time of the From examination. it treat does not was said appear respect anything ment. The it is informed the that he believed doctor, true, law that under the he (the testify would not be permitted physician) is of his examination оr result of the but it test; blood exam true the doctor to the equally suggested ination made at that time to his case might injurious very had better with his before (defendant) consult permitting attorney the examination to be made. There is not indication that the slightest the examination was made the will or without the against consent It thereto defendant. on the that he consented appears, contrary, with full of the conditions under reasons for which and the knowledge it was made. is true a week or so later medi gave physician in cal treatment to the this did not render defendant; but, obviously, what admissible occurred before relation created.
“It well settled is that in order for to exist the case privilege or a communication to or the relation physician surgeon, must and the exist between physician person patient made. no confi- or to whom the communication is Where therе is is extends dential no relation, privilege. privilege continuation of relation of physi- acquired during cian and does from not preclude testifying acquired either before to information which he respecting does If or after its termination. ... the physician relation began but for some indeрendent 'in a to treat not act capacity at- no examined, privilege known to the ordinarily person of a attor- the direction Thus a who at prosecuting taches. a defendant the purpose or a court makes an examination ney regarding is testify condition competent his physical determining as the if he not assume to act information he does gained physician- aid.” 28 C. latter his professional proffer L. for a “In order says: 2382, 2383) Cyc. pp. (40 have must and patient relation the physician
be incompetent, symptoms, statements, him and the as to whose person between existed NORTH DAKOTA REPORTS in- lie called to at tbe when tbe testify acquired condition lie may is called disclose; on to and so formation which observed condition as what he or learned to a person’s testify him- between was established relation fore or which he as to matters self and person, transpired relation pre- 'after the relation ceased. No professional observed disclosure of information arises a physician cluding for that makes an examination of a person alone employed *7 in order to search with crime to pass upon sanity, charged or innocence.” bearing symptoms guilt physical the trial I court Case, entirely As construe the evidence not did the relation justified holding the specimen at examined, exist the defendant Wasserman test; use applying blood obtained not until some time after the result test relation did arise of аnd in contemplation known. examination was made came treatment. was it made Neither as a preparation the defendant. for or against obtaining the purpose purpose,— but lawful different, entirely wholly another the health sheriff to to enable the namely, properly safеguard in his care. prisoners J., concurs Nijessue, opinion. dissenting a re-argu- In this case a was ordered and rehearing Curiam. Per A former opinion pre- of the court adhere ment bad. majority Judges Justice Chief BeohsoN, ChrtstiaNSobt pared their opinion. expressed adhere views dissenting Nuessle