Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1901-12-20
KNO|Y POINT SETTLED
Supreme Court Disposes OF an
Important Point Relating
to Evidence.
Physicians Testimony Not OF
Privileged Character After
a Patients Death.
Decision in Case Involving
Rights TO Appropriate
Ice on Rivers.
to Times-Republican.


Des Moines, Dec 2O-Two of the de-
cisions handed down by the supreme
court Thursday have an interest more
than local to the county from which
they were were appealed. They decide
points which are likely to arise in any
community in the state.
Conflict in court decisions as to the
admissability of testimony of a privi-
legged character by physician after the
death of a patient was reconciled by the
decision in the case of the state, appel
liant, against Miss Gus Grimmell, of JET
ferson, Greene county, taken up by the
state for the purpose Of certain offered
testimony. Miss Grimmell, who is a
practicing physician, was charged with
murder in the second degree by procur-
ing a miscarriage for Mrs. Ed Sherman
IN 1898. She was found not guilty, and.
of course, the reversal of the case on the
appeal of the state does not reopen the
prosecution, and merely settles some
disputed points OF law.
During the trial the state offered the
testimony of DR.. Charles Enfield, Of
Jefferson, relating to the information he
ACQUIRED on examination of Mrs. Sher-
man Just prior to her death. The de-
tense objected, because, as physician,
his communication with the patient was
privileged. His testimony was excluded
This, the supreme court holds, was an
error. The death Of the patient altered
the situation. Says the court:
Surely it will not do to hold that a
statute intended to protect a patient
should operate as shield for one who Is
charged with murder. Such construc-
ton, while perhaps technically correct
is evidently so foreign to the purpose
and object Of the act (statutc) and go
subversive OF public justice that 1t
ought not TO be adopted except for the
most imperative reasons. The safety OF
the public Is the supreme law OF the
commonwealth, and we do not think
that the legislature intended this stat
ute (sec. 4,60s) to operate as barrier TO
the enforcement Of the criminal laws OF
the state.
IF the patient were alive perhaps no
one but she could waive the prohibition.
but in this case she is dead and unable
TO speak II in civil case her repre-
sentative may waive the prohibition we
see no good reason for saying that In
criminal one the prohibition is abso-
Lutte"
In a Lee county case-Becker vs. Hall
"a decision was made by the supreme
court Thursday regulating rights TO
harvest ice on public waters, and which
is Of Importance in Des Moines, and in
almost every other community IN Iowa.
The ice on the government canal at ke-
okuk was in controversy in this case.
The right to take ice from public waters
is common, until there has been an APP
So much is conceded.
What will amount to an appropriation
is the question.
ut Is apparent" says Judge Sherwin,
who wrote the opinion in the instant
case, that no rule can be adopted that
will exactly fit all cases. but we think
there may be deduced from them rule
that will do substantial justice to all.
We believe the true rule to be that
there can be an appropriation OF ice,
formed upon public waters only when
the ice is fairly merchandise, and when
he who seeks to appropriate it has the
intention and ability to proceed
at once to the harvest thereof and does
so proceed with reasonable diligence.
No rights can be acquired by stalking
the banks of stream before 1t has fro
zen, as was done In this case by both
parties. for If such rule were estab- |
lished the public could be forever ex-
Guided from participation in such public
benefits.
Nor can the marking, stalking or
clearing ice not yet of sufficient thick
ness for harvesting amount to legal
appropriation thereof.
In addition to all this there must be
actual possession of the field when fit to
cut, coupled with the present intent and
ability above stated"
In the Lee county case the court finds
The plaintiffs in possession of the ice
Interference was illegal.