Espenlaub v. State

• Decision Date: 03 July 1936
• Docket Number: 26562.
• Citation: 2 N.E.2d 979,210 Ind. 687
• Parties: ESPENLAUB v. STATE.
• Court: Indiana Supreme Court

2 N.E.2d 979

210 Ind. 687

ESPENLAUB v. STATE.

No. 26562.

Supreme Court of Indiana.

July 3, 1936

George Espenlaub was convicted of assault and battery with intent to commit rape, and he appeals.

Affirmed.

Appeal from Vanderburgh Circuit Court; Ernest J Crenshaw, Special judge.

Philip C. Gould and Daniel H. Ortmeyer, both of Evansville, for appellant.

Philip Lutz, Jr., Atty. Gen., and Caleb J. Lindsey Asst. Atty. Gen., for the State.

ROLL Judge.

The appellant was charged by indictment with the offense of first-degree rape. To this charge he entered a plea of not guilty. Trial was had and a verdict returned finding appellant guilty of assault and battery with intent to commit a felony, to wit, rape. Over a motion for a new trial, the court rendered judgment on the verdict, from which this appeal is prosecuted.

The only error assigned by appellant is the overruling of his motion for a new trial.

Appellant's first contention under his motion for a new trial is that the verdict of the jury is contrary to law, and that the verdict of the jury is not sustained by sufficient evidence.

The record discloses that appellant was a physician, practicing his profession in the city of Evansville, Ind., and that Viola Kern, the prosecuting witness came to appellant's office in the afternoon of September 29, 1934, to see the doctor about what she thought, was kidney trouble; that she was admitted to appellant's private office, and, after some conversation, appellant told her that he would have to make an examination of her private organs and asked her to retire to the rear room, which was used for minor surgical operations, and remove her underclothing, and to lie down on the table for the examination. Mrs. Kern went to the rear room, and after removing some of her underclothing, lay down on the table. Appellant then came in and adjusted her feet in stirrups that were fastened to the side of the table, and it was while she was lying in this position that she claimed appellant committed the crime of rape upon her. She and appellant were alone in the room at the time and were the only witnesses that testified as to what occurred there. The prosecuting witness testified directly, that appellant committed the crime of rape upon her, and if the jury believed her story as to what took place while she was lying on the table in his office they could not have done otherwise than find appellant guilty; for she testified to every element constituting the crime of rape. Appellant testified to a different story. Their evidence is conflicting, but we are in no position to weigh the evidence. That was the province of the jury. Where there is substantial evidence on every material element constituting the crime charged, this court will not disturb the verdict for insufficient evidence. This rule has been stated and restated so often that citation of authority is unnecessary. We hold that the verdict is sustained by sufficient evidence.

At the trial appellant contended that Viola Kern came to his office on September 29, 1934. That she told him that she had recently been married, and that she was afraid she might be pregnant. Mrs. Kern denied this, and in defense, appellant offered in evidence, defendant's Exhibit No. 9, which is as follows: ‘ Protestant Deaconess Hospital, 604 Mary Street, Evansville, Indiana, date November 3, 1934, name Mrs. George Kern (Viola), Room 201, Case No. 47915, address 207 Elm Street, Doctor, Doctor Combs, operation 11-3-34, diagnosis incomplete miscarriage, operative diagnosis incomplete miscarriage, patient came to hospital for curettage, uterus curetted and a small erosion of cervix which was cauterized.’ Appellant contends that this evidence was competent and material, and should have been admitted for two reasons: First, it was competent as tending to discredit the testimony of Viola Kern; and, second, that it tended to support and corroborate the testimony of appellant. It is true that evidence tending to discredit the testimony of the prosecuting witness, or tending to support and corroborate the testimony of defendant is material, and should have been admitted unless objectionable for the reasons urged by appellee. Appellee objected to the introduction of Exhibit No. 9, on the theory that it is hearsay and privileged. The nurse who made the hospital record sought to be introduced (Exhibit No. 9) testified that she received the information contained in Exhibit No. 9 from the attending physician. That the attending physician orally dictated it to the nurse, and she took it down in shorthand and afterwards transcribed it in longhand and placed it in the files of the hospital. The she had no personal knowledge of the facts herself. The exhibit shows that Dr. H. T. Combs administered ether, and the record shows that Dr. McClary was the attending physician. It will also be noted that the prosecuting witness, Viola Kern, gave her consent to have Drs. Combs and McClary to testify as to her condition and as to her operation on November 3, 1934, at the Deaconess Hospital, and any and all information they obtained as to her condition by reason of their relation as physician and patient. Appellant did not avail himself of this privilege and did not place the physicians on the stand to testify. That Exhibit No. 9 is hearsay testimony there can be no doubt. Delaney v. Framingham Gas, Fuel & Power Co. (1909) 202 Mass. 359, 88 N.E. 773, 776, where it is said: ‘ In the present case the records were produced by the witness Gabagan. It appeared that the records were made by her, and that she was the proper custodian of them. But it further appeared that she never had any personal knowledge of the facts stated therein; that she received slips of paper from Dr. Painter, the physician, and copied them into the record, and that was all she knew about them. The record was offered as evidence to show that the statements therein made were true. As handed to the witness by the physician they were simply statements of the physician as to what the patient had said to him, or as to the diagnosis made by the physician. The records were comparatively recent. It was not shown that the physician was not living and within the jurisdiction of the court. No necessity was shown therefore for the introduction of this hearsay testimony. For aught that appeared there was better evidence. Under these circumstances the reason upon which the general rule was based, namely, that the record should be a record of facts of which the writer had personal knowledge, should be applied. The case is not within the abovementioned exception to the general rule.’ See, also, Griebel v. Brooklyn Heights R. Co. (1904) 95 A.D. 214, 88 N.Y.S. 767,affirmed (1906) 184 N.Y. 528, 76 N.E. 1096.

It would be difficult to see how appellant could be injured by the rejection of Exhibit No. 9, when the doctors who were present and attended Viola Kern and who knew the actual facts which he was seeking to present to the jury were available, and, as far as the record discloses, were ready and willing to testify to the facts. This would be the best evidence, and there was no reversible error in excluding Appellant's Exhibit No. 9.

Appellant, in his motion for a new trial, predicates error upon the overruling of objections to questions asked appellant while testifying concerning his practice at the two hospitals in Evansville, and whether or not he was denied the privilege of taking patients there, and whether he was not called before the executive committee tee of the staff of the Deaconess Hospital on a charge of immoral conduct with a student nurse. Appellant sets out in full the cross-examination of appellant upon this subject, and we find from reading this examination that the court sustained objections to all the questions that were questionable. The other questions appellant answered in the negative, and we cannot see how appellant was in any way harmed by such questions. However, we think the questions proper as affecting his credibility as a witness. See Shears v. State (1897) 147 Ind. 51, 46 N.E. 331. Many other objections are made to the admission and rejection of evidence. We have examined all of them, and we are of the opinion no reversible error was committed in the reception and rejection of evidence.

Appellant questions the court's instruction No. 6, which reads as follows:

‘ In all prosecutions for rape a statute of Indiana applies which reads as follows:

" In

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