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do so properly. If the patient acquiesce, he should have the right to, and should, com municate freely and fully, without fear of ex posure or of having his confidence made common property. It was to this end that the statute was enacted, and manifestly the purpose thereof may not be frustrated by proof that, at the time of rendering profes sional service, the physician was under con tract of employment to serve the interest of the person or company subsequently charged with responsibility for the identical injury he is called upon or assumes to treat. Accord ingly we hold that the trial court did not err in refusing to permit answers to the ques tions asked of the witness. The views above expressed find support, in principle, at least, in the following cases: Raymond v. Railway, 65 Iowa 152, 2i N. W. 495; Kiestr. Railway (Iowa) 81 N. W. 181; Griffith v. Railway (Sup.) 66 N. Y. Supp. 801; Railway v. Mushres, 37 N. E. 154; Pennsylvania Co.z>. Marón (Ind.) 23 N. E. 973; Grossman v. Knights of Honor (Sup.) 6 N. Y. Supp. 821; State v. Houseworth, 91 Iowa 740, 60 N. W. 221; State v. Swafford, 98 Iowa 362; 67 X. W. 284." POSSESSION OF WILD DUCKS WITH INTENT TO SELL. (VIOLATION OF LAW — CRUEL AND UNUSUAL PUNISHMENT.) SUPREME COURT OF MINNESOTA.
In State v. Poole, 100 Northwestern Re porter 647, defendants were convicted of having two thousand wild ducks in their pos session, contrary to law, and fined $20,000. It was contended that the statute (Laws Minn. 1903, c. 336, p. 606, § 45), under which this conviction was had, which provides that a person having in his possession wild ducks with intent to sell shall, on conviction, be punished by a fine of not less than ten dollars nor more than twenty-five dollars for each and every bird so had in his possession, was unconsti tutional, on the • ground that it provides for the imposition of excessive fines, and the infliction of cruel and unusual punishments. It must be admitted that the penalties fixed
by the statute are drastic when imposed in cases where there has been a wholesale vio lation of the law. It is, however, clear that the purpose of the statute is to protect the wild game of the State, and that, if the pun ishment were not graduated according- to the number of birds unlawfully possessed, this purpose would be defeated. If the penalty were not graduated, so that the greater the offense the greater the punishment, the stat ute would invite its own defeat. It would be absurd to punish the unlawful possession oi 2,000 or more birds on the basis of one. It would have been competent for the Legisla ture to hare provided that the unlawful pos session of each bird should be a distinct of fense, punishable by a fine of not less than ten dollars nor more than twenty-five dollars, or by imprisonment in the county jail for not less than ten nor more than thirty days. If such were the statute, it could not be fairly claimed that the fine was excessive, or the imprisonment cruel or unusual, although separate indictments might be found for each offense, and in case of convictions cumula tive sentences would be legal. Now, the statute in question secures the same result by treating the unlawful possession of wild ducks, no matter how many, as one offense, and graduating the punishment according to the number of birds—that is, the number of offenses, if the possession of each were de clared a separate offense—thereby avoiding separate indictments and cumulative sen tences. So, in its last analysis, the fines im posed in this case are seemingly excessive, not by reason of the statute, but by reason of the magnitude of the offense, or of its equivalent, the number of offenses of which the defendants were convicted. The fault is theirs, not that of the statute. This method of fitting the punishment to the crime by graduating the penalty according to the number of animals, birds or fish unlawfully killed, taken or possessed has been adopted by the statutes of many States, and sustained as a proper exercise of legislative discretion. In support of its position, the court cites: State v. Lubee, 93 Maine 418, 45 Atlantic
