Ottumwa semi-weekly courier. [volume] (Ottumwa, Iowa) 1899-1903, 1901-12-24
DOCTORS MAY TELL
May Give Patients Dying DecIara-
tons in Criminal Case.
SUPREME COURT MAKES NEW RULE
Decision One of Great Importance to
LaWyers-The Rule Fixed as to the
Right to Cut Ice on Public Waters
Another Important Ruling.

| Des Moines, Dec. 21-Conf1ict in
court decisions as to the admissability
of testimony of privileged character
by physician after the death of pa
tient has been reconciled by a decis-
ion OF the supreme court, in the
case of the state, appellant, against
| Miss Gus Grimmell, of Jefferson,
G-eene county taken up by the state
for the purpose of securing a ruling
( on the admissability of certain offered
testimony. Miss Grimmell, who is a
! practicing physician,w was charged with
murder in the second degree by pro-
curing miscarriage for Mrs. Ed Sher-
man in 1898. She was found not gull
! ty, and, of course, the reversal of the
case on the appeal of the state does
not reopen the prosecution, and mere
ly settles some disputed points of law.
During the trial the state offered
the testimony of Dr. Charles Enfield.
of Jefferson, relating to the informa-
ton he acquired on examination of
Mrs. Sherman just prior to her death
The defense objected, because, as a
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 patient
should operate as shield for one who
is charged with murder. Such con-
struction, while perhaps technically
correct, is evidently so foreign to the
purpose and object of the act (statute
i so subversive of public justice that it
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
statute (Sec. 460S ITO operate as a
barrier to the enforcement of the Grim
1nal laws of the state.
Ii the patient were alive perhaps
no one but she could waive the prohi-
bition. But in this case she is dead
and unable to speak. If in a civil
case her representative may waive the
prohibition we see no good reason for
saying that in criminal one the pro-
hibition is absolute.
Public Water Ice.
In Lee county case-Becker VS.
Hall-a decision was made by the SUI
preme court, Thursday, regulating
rights to harvest ice on public waters.
Z oiid IS VI III Les
Moines, and in almost every other COM
munity in Iowa. The ice on the gov
eminent canal at Keoluk was in con
troversy in this case. The right to
take ice from public waters IS com
mon, until there has been an appro-
priation. So much is con eded What
will amount to an appropriation is the
4 question.
1T is apparent" says Judge Sherw.n
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 a 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 merchantable, and
when he who seeks to appropriate it
| has the present intention and ability
to proceed at once to the harvest there
of and does so proceed with reasonable
diligence.
mo rights can be acquired by stalk
ing the banks of stream before it
has frozen, as was done in this case
| by both parties, for if such rule
were established the public could be
forever excluded from participation in
such public benefits.
Nor can the marking, stalking or
clearing ice not yet of sufficient thick
ness for harvesting amount to a legal
appropriation thereof.
In addition to all this there must
be actual possession of the field when
fit to cut, coupled with the present in
tent and ability above stated
In the Lee county case the court
/ q IL