People v. West

Belcher, C. The defendant was charged with the murder of one Addie Regent Gilmour, and found guilty of murder in the second degree. The judgment was [90]that he be punished by imprisonment in the state prison for the term of twenty-five years, from which judgment and an order denying his motion for a new trial he appeals.

It is contended for appellant that the court committed several errors of law in its rulings as to the qualification of certain parties to sit as jurors in the case, and in the admission and exclusion of evidence, but in view of the conclusion reached only one of these alleged errors need be considered.

The theory of the prosecution was that the deceased, Miss Gilmour, was pregnant, and went to the defendant, who was a physician in San Francisco, to have him procure for her a miscarriage, and that defendant by some unlawful means did procure the miscarriage, and thereby cause her death a few days later.

The theory of the defense, on the other hand, was that the miscarriage was effected by some one else before the deceased went to the house of defendant, and that he as a physician received her there and did all he could to relieve her sufferings and save her life.

To sustain his theory defendant called as a witness Dr. R D. Johnson, who was a licensed physician and was willing to testify. No objection to his testifying was interposed by the prosecution, but the court said:

“If what has come to him has come purely in a professional way, the declared policy of the law would exclude it here, whether it be objected to or not; it is my duty to exclude it, if that is so.”

Then addressing the witness the court asked:

“Is it so that all you know has come to your knowledge in the course of your profession, as to the physical condition of the woman, and you are called upon to tell what you found out as her physician; is that all you know” ?

“A. Yes, sir.”

Again the court asked:

“And whatever you know about the deceased woman, is it or not the fact that whatever you know was in