
    No. 329
    TOMLINSON v. STATE
    No. 19011.
    Supreme Court.
    Motion to file petition in error to Stark Appeals. Dock.
    March, 1925,
    3 Abs. 162.
    921. PHYSICIANS AND SURGEONS— May privileged communications of, between clients as written in records of such physicians be offered in evidence? Does 11494 GC. apply?
    Attorneys—Herbruck, Black, MeCuskey & Ruff and R. O. Robertson for Tomilson; C. B. McClintock, Pros. Atty. for State; all of Canton.
   Dr. Samuel Tomlinson was tried in the Stark Common Pleas for abortion upon Anna Landis. He was convicted and sentenced to the penitentiary for 1 to 7 years. Error was prosecuted to the Court of Appeals and Tomlinson claimed that the lower court erred in permitting the prosecuting attorney to interrogate him in presence of the jury with reference to medical services rendered to persons other than Anna Landis; the information upon which the prosecuting attorney based his questions being obtained from written statements or memoranda made by Tomilson, which information he received from persons while acting in the relation of physician and patient.

It was claimed that on the day Tomilson was arrested, police went through his files and private papers and took away slips upon which were written memoranda of many of his cases. Tomlinson contended that these reports or slips could not so be used in evidence without consent of patients in each case, in order- to comply with 11494 GC which provides that certain persons shall not testify in certain respects, viz: A physician concerning communication made to him by his patient in that relation or his advice to his patient, but the physician may testify by the express consent of the patient, and if the patient voluntarily testifies, the physician may be compelled to testify on the same subject.

Tomilson contended that the only reason the record of the other cases were used, was for the purpose of creating passion and prejudice in the minds of the jury, and it had that desired effect when the prosecuting attorney stated that other abortions were procured by him. The Court of Appeals affirmed the judgment of the lower court, .agreeing with the Common Pleas, that 1149 .GC was not intended to be used as a defense.

The case is brought to the Supreme Court to overrule both lower courts. Tomlinson declares that if conviction in this case is sustained it will destroy the privilege which the statutes give to communications between husband and wife, attorney and client, and physician and patient, because it will be possible, under the guise of cross examination, to bring into the record every item of testimony which would be excluded under the rule of privilege.  