¶1 Dissenting Opinion.
¶2 delivered a dissenting opinion.
¶3 In my opinion the judgment of the court below should he reversed, and I base that conclusion upon what I conceive to have been prejudicial error in admitting testimony in violation of the privileged communication statute, section 1536, Code 1930. I think this statute has no application unless the relation of physician and pa *673 tient actually exists between the objector and the physician; but in this case it clearly appears that the relation, did, in fact, exist between the accused and Dr. Ramsey. As to Dr. Oates, the record merely shows that he was called to see the accused while she was in jail, and it is left in doubt as to whether the relation of physician and patient was established. The record discloses that for a period of about twenty years Dr. Ramsey was the physician in the appellant’s home, and that for two weeks following her incarceration in jail she was constantly under his care and treatment for physical disorders. When the testimony of these two physicians was offered, it was objected to on the specific ground that the relation of physician and patient existed between them and the accused; and in the case of United States F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115, 119, 15 A. L. R. 605, it was held that when the testimony of a physician was objected to on this ground, “the question ought to be directed to ascertaining whether the physician has knowledge by reason of the relation of physician and patient, and, if it was so acquired, it ought to be excluded.” It appears to me that the testimony of Dr. Ramsey was clearly incompetent, and under this view it only remains to consider whether or not the admission thereof was sufficiently prejudicial to require a reversal.
¶4 The only defense offered by the accused, and, under the facts of this record, the only defense possible for her to make, was that she was insane at the time of the alleged killing. It may be possible that the sane daughter of civilized and respectable parents might kill her mother, with whom she had lived her life in apparent harmony, and for whom she had always manifested an unusual degree of love and affection; and then dissect the body, burn the greater part of it piece by piece, in the fireplace of the home, and dispose of the two remaining pieces by throwing them out of a car near a roadside, *674 but it is exceedingly difficult for me to conceive of such acts being the product of a sane mind. Human depravity so complete as to account for such fiendish butchery of a mother by a daughter would hardly manifest itself suddenly in the life of a young woman of the type and character mentioned above. There was abundant evidence to support the theory of insanity, and certain it is that upon the entire evidence the question of whether or not the appellant was sane at the time of the commission of the alleged crime was an exceedingly close one; and this being true, it was vitally important that all her legal rights touching this issue should have been carefully preserved and fully granted.
¶5 Dr. Ramsey had been a reputable practitioner of medicine in the city of Laurel, and the county of Jones, where the alleged killing occurred, and the trial was had, for more than thirty years, and for twenty years of that time he had been the family physician in the Keeton home; and for about two weeks following her incarceration in jail the appellant had been under his constant care and treatment. In all probability this physician was well known to every member of the jury, and it would not be an unexpected consequence that the jurors would attach more importance to the testimony of the family physician, who had observed the accused for many years, and who had her under his constant care and treatment for days after the tragedy, than they would to the testimony of experts who had never seen the accused except for the limited period when they observed her for the purpose of forming an opinion as to her sanity. It is altogether probable that on the evidence in this record the testimony of this physician turned the scale against the accused. In any event, I am unable to say that the error in the admission thereof was harmless.