#### STATE v. ROBERT L. MARTIN.

(Filed 9 November, 1921.)

1. Evidence — Motions to Dismiss.

A motion to dismiss a criminal action will be denied if the evidence favorable to the State is sufficient to sustain a conviction, without considering that upon which the defendant relies.

2. Criminal Law — Producing Abortion — Evidence—Motion to Dismiss— Statutes.

Where the defendant is tried under O. S., 4226 and 4227, for producing a miscarriage or abortion of a pregnant woman, the action will not be dismissed upon the evidence if it is sufficient for a conviction upon either count.

3. Same — Questions for Jury — Trials.

Upon the trial in this action, wherein the defendant was indicted for procuring the miscarriage or abortion of a pregnant woman, under the provisions of C. S., 4226 and 4227, testimony of the relation between the *847defendant and the woman, bis paying half of the doctor’s fees, and his concern as to the result, is held sufficient to sustain the verdict of guilty, taken in connection with the other evidence in the ease.

4. Physicians — Evidence—Privilege—Statutes—Compelling Testimony— Court’s Discretion.

The principle by which a physician may not be compelled to divulge communications and other matters which have come to his knowledge by observation of his patient is regulated by statute, and under the provisions of our C. S., 1798, the privilege is qualified, and it rests within the discretion of the trial judge, in the administration of justice, to compel the physician, called as a witness, to testify to such matters when relevant to the inquiry.

5. Evidence — Statements— Denials — Criminal Daw — Miscarriage—Statutes.

The testimony as to the statement of a woman on whom the defendant was charged with bringing on a miscarriage or abortion, in violation of the provisions of C. S., 4226-4227, that the defendant had paid the physician one-half of the $200 fee he had charged for such services, and uttered in the defendant’s presence, is held competent with the other evidence in this case; and whether the defendant, under the circumstances, was so intoxicated that he did not understand, presented a question for the jury to determine as to whether the woman’s statement was made in the hearing as well as in the defendant’s presence; whether they were understood by him, or he denied them or remained silent.

Appeal from Long, J., at July Term, 1921, of Forsyth.

Tbe defendant was prosecuted for a breach of sections 4226 and 4227 of the Consolidated Statutes, upon the following bill of indictment:

“The jurors for the State upon their oath present:. That Robert L. Martin, late of the county of Forsyth, on 28 June, in the year of our Lord one thousand nine hundred and twenty-one, with force and arms, at and in the county aforesaid, unlawfully and willfully and feloniously, did administer to Rosa Yow, a woman pregnant and quick with child, and did prescribe for said Rosa Yow and advised and procured said Rosa Yow to take certain medicines, drugs and other substances, and used and employed other instruments and money with intent to destroy said child, the same not being necessary to preserve the life of the mother, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.

“And the jurors aforesaid, upon their oath, do further present, that Robert L. Martin, at time aforesaid, with force and arms, at and in county aforesaid, unlawfully, willfully and feloniously did administer to Rosa Yow, a pregnant woman, and prescribe for said pregnant woman, and advise^ and procure said Rosa Yow to take medicine, drugs and other things, with intent thereby to procure the miscarriage of said Rosa Yow, against the form of the statute in such case made and provided and against the peace and dignity of the State.”

*848The jury convicted the defendant, who, after judgment was pronounced, appealed. He has assigned several errors, among them the refusal of his Honor to dismiss the action as in case of nonsuit. The State introduced only two witnesses, Dr. Mimms, and W. P. Tow, a brother of Rosa. The defendant offered no evidence. The evidence, most favorable to the State, tended to show the facts to be as herein stated. Rosa Tow wa's 18 or 19 years of age. Several months before the indictment she had married a man named Howard Daye, with whom she lived only a short time. On Saturday she went to- her brother's house, which was four or five miles from Winston-Salem, and on the next Monday at three o’clock in the afternoon suffered an abortion, or miscarriage. On Monday night Dr. Mimms was called to see her, and found her in bed slightly bleeding. At the time of the abortion, or miscarriage, she was advanced in pregnancy from two to four months. The defendant accompanied Dr.- Mimms on this visit, and told him that another doctor had charged $200 for the operation, one-half of which the defendant had paid by a check which he had destroyed after it was cashed. On this visit Dr. Mimms and the defendant went into-Rosa’s bedroom, the defendant seating himself on a sofa in one corner of the room. The defendant was drinking, and occasionally “opened up and said something,” and Dr. Mimms, while not positive, thought the defendant was awake, and if awake, could hear Rosa’s conversation with the witness. In the presence of the defendant Rosa told Dr. Mimms that since becoming pregnant she had desired a miscarriage, and had called on a physician who charged her $200; that the defendant had given her a check for $100, which, with $100 of her own money, she had paid this physician; that the physician when the money was paid took her into a room, laid her on a table, used some kind of instrument in packing something in her womb, and gave her medicine to take. She said this doctor, after getting his money, refused to visit her, and the defendant said he had phoned him to go and he ought to have gone. At one time the defendant paid Dr. Mimms $60. Defendant made another visit with Dr. Mimms. On the second Saturday night next preceding the first visit, the defendant and Rosa called at Dr.. Mimms’s office, but left there while he was attending a call; and five or six days before this visit Rosa had come to his office alone. In the presence of others she addressed the defendant in endearing terms, and they were very affectionate. There were other circumstances tending to show their intimate relation.

Attorney-General Manning and, Assistant Attorney-General Nash for the State.

Wallace & Cohen, and Hastings & Whicker for defendant.

*849Adams, 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, *850and 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.