West

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…

I concur. Section 1321 of the Penal Code is as follows: “ The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this code.”

What, then, are the rules for determining the competency of witnesses in civil actions?

The general rule is prescribed in section 1879 of the Code of Civil Procedure, as follows:

This, then, is the rule: that all persons, without exception, otherwise than is specified in the next two sections, may be witnesses, and the only question is to determine what is otherwise specified in those sections, which read as follows:

Obviously, section 1880 has no bearing on the question of the admissibility of Dr. Johnson’s testimony, and the only provision of the following section that bears directly upon it is that contained in subdivision 4, which, by its express terms, is limited to civil actions.

Such, then, is the rule, and such its limitation, as to physicians and surgeons. Except in civil actions they may be examined as to information acquired in attending a patient.

The construction contended for by respondent would simply eliminate from the statute the…