We are of opinion that § 834 of the Code of Civil Procedure is applicable to criminal actions, and that whatever possible doubt may have attended the question is fairly dispelled by § 329 of the Code of Criminal Procedure. The con *99 fidential character of disclosures by a patient to his attending physician was established before the Code by statute, and in terms which, beyond reasonable question, applied to all actions whether civil or criminal. 3 R. S. (6th eel) 671, § 119; People v. Stout, 3 Park, 670. That statute was substantially incorporated into the civil Code, in language broad enough to justify the same general application as that which characterized the older statute, and the further provision of the Code of Criminal Procedure already referred to seems to us intended to settle the question No doubt upon that subject was intimated in Pierson v. People (79 N. Y. 424); but in that decision the statute was construed, and we held it did not cover a case where it was invoked solely for the protection of a criminal, and not at all for the benefit of the patient, and where the latter was dead so-that an express waiver of the privilege had become impossible. The present is a different casa Here the patient was living, and the disclosure which tended to convict the prisoner inevitably tended to convict her of a crime, or cast discredit and disgrace upon her. We have no doubt upon the evidence that between her and the witness whose disclosure was resisted, there-was established the relation of physician and patient Although he was selected by the public prosecutor, and sent by him, yet. she accepted his services in his professional character, and he-rendered them in the same character. She was at liberty to-refuse and might haye declined his assistance, but when she-accepted it she had a right to deem him her physician and treat, him accordingly. It follows that the exception to his disclosure of what he learned while thus in professional attendance was-well taken. But if his evidence had been admissible as being-competent, another error was committed. He was sent to the-patient after the crime was complete, when the abortion had been accomplished, and the patient was merely suffering the physical consequences of the crime. Although she herself was a party to that crime, and relating to it, was an accomplice of the accused, and, so to speak, a co-conspirator with him, yet her declarations, narrative of a past occurrence, and constituting no part of the res gestee were not admissible. These declarations were excluded by the court upon the objection of the accused *100 and properly excluded. But, notwithstanding, the attending physician was allowed to express his opinion as a medical expert that an abortion had been produced, founding that opinion not only upon what he observed of the physical condition of the woman, but upon all her statements, and upon the history of the case as derived from her. The opinion of the General Term concedes the error of such evidence, but insists that the opinion was founded upon her statements merely of “ the locality of the pain, the condition of the injured parts and so on.” We understand what occurred differently. When the witness was first asked his opinion whether the birth occurred from natural or artificial causes, he inquired whether, in giving his answer, he would be allowed to consider the clinical history of the case as he got it from the girl’s statement, to which the prosecutor replied: "Certainly; I ask the question upon the whole history of the case as you learned it from her as well as from the examination." To this the prisoner objected. The court did. not at once pass on the objection but suggested that the physician answer first from his observation alone. He did so answer, and said: “ From my physical examination of the woman and the foetus it would lead me to believe that an abortion had been induced,” and then added as a reason that natural miscarriages were not likely to occur at that stage of pregnancy with the frequency of earlier stages. How weak this evidence was Upon the vital point whether the miscarriage arose from natural or artificial causes was made apparent on the cross-examination, where, in answer to the direct question, “ whether or not from such physical examination as you describe you made there, is it possible as a matter of medical knowledge, science and experience to say that a miscarriage had been produced?” The witness felt constrained to answer: “Ho, sir.” The prosecutor, apparently feeling the need of adding some decisive force to the opinion, followed his first inquiry with this question: “ On ' the personal examination that you made of the woman and the foetus, and the history of the case as you got it from her, what ■ do you say now as to whether or not there had been an abortion brought about by artificial means?” To this question the prisoner’s counsel objected, as calling for hearsay and a privi *101 leged communication, and on the further ground that it involved “the history of the case” which had'not been disclosed. The district attorney offered to disclose it, and put the question what the girl said, which was objected to and excluded. Thereupon the court overruled the objection, and the witness answered: “ I say an" abortion had been produced.” It is not possible on this state of facts to say justly that by the history of the case and the girl’s statement was meant only her complaints of present pain and suffering. Nothing of the kind was suggested or pretended, or could have been understood- by court or witness or jury. Indeed, on cross-examination, the witness described what he meant by the “ clinical history of the case,” saying: “ I wrote down part of her statement and testified to it in the police court, and that included how she came there and what happened since she came to that house.” So that the opinion of the expert that a crime had been committed, founded upon the narrative of the woman of previous facts, which narrative was itself inadmissible and remained undisclosed, was given: to the jury. Necessarily it carried with it damaging inferences of whát that narrative in fact was, and drove the accused to the alternative of omitting all cross-examination as to the concealed basis of the opinion or admitting inadmissible evidence.
. We think there was error for which the judgment should be reversed and a new trial granted, and the proceedings remitted to the Court of Sessions of Monroe county for that purpose.
All concur.