
    COURT OF APPEALS.
    People agt. Murphy.
    
      Practice — Criminal trial — JShidence—Privileged, communication — Opinion deduced from, — Declaration to physician — After deelacmtions not a part of the res gestee— Oode of Criminal Procedure, section 392 — Code of Civil Proced-ure, section 834.
    Where a physician is selected by the public prosecutor, and sent by him to a prisoner after a crime has been committed, and she accepts his services in a professional character, disclosures made by her to him are privileged communications, and this rule applies to all actions, civil or criminal.
    The opinion of such physician as to whether an .abortion has been committed, founded partly on such statements, is also inadmissible.
    Although the prisoner was a party to the crime (abortion) and relatively 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.
    
      Decided January, 1886.
    
      Horace S. Bennett, for appellant
    
      Joseph W. Taylor, for the people.
   Finch, J.

We are of the opinion that section 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 section 892 of the Code of Criminal Procedure. The confidential character of disclosures by a patient to his attending physican was established before the Code by statute, and in terms which, beyond reasonable question, applied to all actions, whether civil or criminal (3 Rev. Laws [6th ed.], 671, sec. 119; People agt. Stout, 3 Park Crim. L., 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 agt. 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 & 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 have declined his assistance, but when she accepted it she had aright 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 relatively 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, 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 part, 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 fcetus 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 distinct 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, “No, 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 fcetus, 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 privileged 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 pnt the question, “wbat tbe girl said,” wbicb was objected to and excluded. Thereupon tbe court overruled tbe objection, and tbe witness answered: I say an abortion bad been produced.” It is not possible on this state of facts to say justly that by tbe history of tbe case and tbe girl’s statement was meant only her complaints of present pain and suffering. Nothing of tbe kind was suggested or pretended, or could have been understood by court or witness or jury. Indeed, on cross-examination, tbe witness described wbat be meant by tbe “clinical history of tbe case,” saying: “I wrote down part of her statement, and testified to it in tbe police court, and that included bow she came there, and wbat happened since she came to that bouse.” So that tbe opinion of tbe expert that a crime bad been committed, founded upon tbe narrative of tbe.woman of previous facts, wbicb narrative was itself inadmissible, and remained undisclosed, was given to tbe jury. Necessarily it carried with it damaging inferences of wbat tbe narrative in fact was, and drove tbe accused to tbe alternative of omitting all cross-examination as to tbe concealed basis of tbe opinion, or admitting inadmissible evidence.

We think there was error for wbicb tbe judgment should be reversed, and a new trial granted, and tbe proceedings remitted to tbe court of sessions of Monroe county for that purpose  