
    The People of the State of New York, Respondent, v. William Thomas Murphy, Appellant.
    The provision of the Code of Civil Procedure (§ 834) prohibiting physicians and surgeons from disclosing information acquired in attending a patient is applicable to criminal actions. (Code of Criminal Procedure, § 392.)
    Where, upon the trial of an indictment for abortion, a physician who after the commission of the alleged crime attended upon the female upon whose person it was alleged to have been committed, was allowed to give, as a witness for the prosecution, his opinion as a medical expert, that the crime had been committed, founded upon what he observed as to the ' physical condition of the woman and upon her narrative of the facts, and it appeared that she was alive at the time of the trial. Reid, error.
    Also held, the fact that the physician was selected and sent by the public prosecutor to attend upon the female did not affect the question; that as she accepted his services in his professional character the relation of physician and patient was established between them.
    
      Pierson v. People (79 N, Y. 434), distinguished.
    Also held, that although she was a party to the crime, her declarations, which were simply a narrative of a past transaction and constituting no part of the res gestos were not admissible.
    (Argued November 23, 1885·
    decided January 19, 1886.)
    Appeal from, judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made July 3, 1885, which affirmed a judgment of the Court of Sessions of Monroe county, convicting defendant of the crime of abortion.
    The evidence on the part of the prosecution tended to show that defendant arranged with one Dr. S. to perform an operation to procure an abortion and took the female to the office of said doctor, where the operation was performed; that defendant then took her to a boarding-house and arranged for her board and care until after her sickness and paid the bill. After the discovery of the commission of the crime the district attorney sent a physician to attend upon the girl; he called upon her, made an examination of her person and prescribed for her. Upon the trial said physician was called as a witness for the prosecution and was permitted to give his opinion, under objection and exception, that an abortion had been performed, founded upon personal examination so made by him and upon what his patient told him in regard to the matter. The details are given in the opinion.
    
      Horace L. Bennett for appellant.
    It was error to allow the physician who attended Louise Schlaefer after her miscarriage to disclose information of her condition, acquired while so attending her, or to give an opinion based on that information and what he observed as to her physical condition. (Code of Civ. Pro., § 834; Grattan v. Met. Ins. Co., 80 N. Y. 281; Edington v. M. L. Ins. Co., 67 id. 185; Dilleber v. H. L. Ins. Co., 10 W. Dig. 180; People v. Stout, 3 Park. Cr. 670; Bacon v. Frisbie, 80 N. Y. 394; Westover v. Ætna L. Ins. 
      
      Co., 1 N. E. Rep. 104; Code of Crim. Pro. 329; Han v. Han, 1 T. & C. 499; Sloan v. N. Y. C. R. R. Co., 4; N. Y. 125; Pierson v. People, 79 id. 424, 432; Felter v. N. Y. C. R. R. Co., 49 id. 42; Crowley v. People, 83 id. 464; Carpenter. v. Blake, 2 Lans. 206; Swift v. Mass. L. Ins. Co., 3 Hun, 531; Hall v. Crouse, 13 id. 557; Abbott's Trial Ev. 600; Wendell v. Mayor, etc., 39 Barb. 329; 3 Abb. Ct. App. Dec. 563.) The declarations of Louise Sehlaefer as to the character of her sickness, location of her pains, etc., made several days after the operation was performed upon her (if at all), should not have been allowed against the defendant. (Bacon v. Charlton, 7 Cush. 581; Abbott’s Trial Ev. 600-1; Werely v. Persons, 28 N. Y. 344; Nichols v. B. C. R. R. Co., 30 Hun, 437; Waldele v. N. Y. C. & H. R. R. R. Co., 19 id. 69.)
    
      Joseph W. Taylor, district attorney, for respondent.
    The evidence of the physician who attended the woman after the operation was performed, as to her condition, was properly received. (Code of Crim. Pro., § 395; People v. Veeder, 98 N. Y. 630; 1 Greenl. on Ev., § 102; Aveson v. Lord Kennaird, 6 East, 192; Morrissy v. Ingham, 111 Mass. 63; People v. Williams, 3 Park. 100; Barber v. Merriam, 11 Allen, 324; Pierson v. People, 79 N. Y. 424; State v. Gedicke, 43 N. J. L. 88; Ins. Co. v. Mosely, 8 Wall. 397; Roscoe’s Cr. Ev. [7th ed.] 27-29.) Mrs. Tripp and Miss Sehlaefer were co-conspirators. The evidence of Mrs Pitcher, showing their acts and declarations, was, therefore, properly received. (Farrell v. People, 21 Hun, 485; 84 N. Y 656; People v. Monnais, 17 Abb. Pr. 345; Kelly v People, 55 N. Y. 566; People v. Davis, 56 id. 103; People v. Veeder, 98 id. 630.) The physician, Dr. Herriman, was not prohibited from testifying by section 834, Code of Civil Procedure. (Pierson v. People, 79 N. Y. 424 1 Greenl. on Ev., § 248; 3 R. S. [6th ed.] 671, § 119; 1 Laws of 1880, chap. 245; Perry v. People, 86 N. Y. 357; People v. D'Argencour, 95 id. 629; Crandon v. People, 17 Hun, 490; Laws of 1878, chap. 219; Code of Civ. Pro., §§ 852-869; Code of Crim. Pro., §§ 607, 618, 619; Code of Civ. Pro., §§ 8, 13, 2266, 2292, 3347; 3 R S. [6th ed.] 1029, § 19; People v. Restell, 3 Hill, 295.) The physician, Dr. Herriman, was properly permitted to give his opinion based upon what he learned from observation as well as what the woman told him. (Matteson v. N. Y. C. R. R., 35 N. Y. 492; Maine v. People, 9 Hun, 113; Caldwell v. Murphy, 11 N. Y. 416; Werely v. Persons, 28 id. 343; Brown v. N. Y. C. R. R. Co., 36 id. 603.)
   Finch, J.

We are of 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 39.2 of the Code of Criminal Procedure. The confidential 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 ed.] 671, § 119; People v. Stout, 3 Park. Cr. 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. Ho 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 ofi the privilege had become impossible. The present is a different case. 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 Mm, yet she accepted bis services in Ms 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 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 act. 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 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 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, “ 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 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 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. Hothing of the kind was suggested, or pretended, or could have been understood by court or witness or jury. Indeed, on cross-examination, the witness describes 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. Hecessarily it carried with it damaging inferences of what 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.

Judgment reversed.  