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:

Then addressing the witness the court asked:

Thereupon the court excluded the evidence of the witness, and said: •

Counsel for defendant then made the following offer:

An exception was reserved, and these rulings are assigned as errors.

Shortly after this case was tried the case of People v. Lane, 101 Cal. 513 , was before this court, and in the decision thereof it was said: “It is urged that the court erred in allowing the prosecution to cross-examine Dr. Danforth as to the nature of the complaint for which he treated the defendant. It is claimed that the testimony was irrelevant, immaterial, and incompetent, being a privileged communication between patient and physician. There is no merit in the contention. The rule as to privileged communications between patient and physician does not apply in criminal cases. The chapter on witnesses in the Code of Civil Procedure limits the rule to civil actions (sec. 1881, subd. 4), and the Penal Code, which expressly preserves the rule as to husband and wife in the chapter determining who may be witnesses in criminal actions, makes no mention of physician and patient. (Freel v. Market St. Ry. Co., 97 Cal. 40 .) At common law the rule as to physicians was not observed in either civil or criminal cases. (3 Ricc on *92 Evidence, sec. 209.) The statutory privilege was not conferred to shield a person charged with the murder of another (People v. Harris, 136 N. Y. 448 ), and it certainly was not intended to be used as a weapon against one charged with crime.”

That decision was made in Department One of the court, but a hearing in Bank was afterward asked for and denied.

The decision is clearly applicable to this case and decisive of the question in hand; and on the authority of it the judgment and order appealed from should be reversed and the cause remanded for a new trial.

Vanclief, O., and Searls, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and cause remanded for a new trial.

Temple, J., McFarland, J., Garoutte, J., Henshaw, J., Harrison, J.