People v. Knox
| Decision Date | 30 November 1961 |
| Docket Number | No. 71,71 |
| Citation | 364 Mich. 620,111 N.W.2d 828 |
| Parties | PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Jacob M. KNOX, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Robert J. Colombo, Detroit, for defendant-appellant.
Paul L. Adams, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Samuel Brezner, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for the People.
Before the Entire Bench.
Defendant was convicted by a jury of performing a criminal abortion. The offense allegedly occurred in August, 1959, on the second or third visit of the patient to defendant doctor's office. The People's witnesses included the patient (a 16-year-old-girl), her mother, and her mother's boy friend.
The mother and her boy friend testified they took the girl to defendant's office for examination on August 3, 1959, and, after examination by defendant doctor, the mother was told the girl was pregnant. The mother testified she inquired of the doctor whether or not an abortion could be performed, since she wanted the girl to finish high school, and the doctor advised he could do it upon payment of $350.
All 3 witnesses--the girl, her mother, and the mother's boy friend--testified that 4 days later they returned to defendant's office. The boy friend said he paid defendant $350-$150 by check, $175 in cash, and $25 by an I.O.U. They testified the doctor then took the girl into his office. The girl testified he probed her uterus with instruments until such time as she time as she believed she had expelled something; that subsequently the doctor packed her, advising the girl and her mother the abortion had occurred and that he had disposed of the fetus in the toilet.
Defendant testified he examined the girl upon her mother's request and diagnosed her condition as a slight pelvic inflammatory disease with endometritis and eroded cervix, but that he found no evidence of pregnancy. He testified he prescribed a course of treatments; that the subsequent visits were in connection therewith; and claims to have charged $150 rather than $350.
During the course of the trial the prosecuting attorney found it necessary to refresh the recollection of 2 witnesses by reference to formal statements each had previously made in the prosecuting attorney's office.
The first claim of error on appeal is that in allegedly refreshing the memory of the girl, the prosecuting attorney was allowed to read before the jury questions and answers from a statement taken from the witness several months prior to the trial of the case, even though the statement was not an exhibit nor had it been read to the witness. The following portion of the record is pertinent:
'Q. (By Mr. Kotelly, the assistant prosecutor) Did the doctor say anything at the time? A. Yes.
'Q. What did he say to you? A. He said that it was all over.
'Q. Did he say anything else? A. No.
'Q. Now, do you remember making a statement at the prosecuting attorney's office on the second day of September, 1959? A. Yes.
'Q. Now, to refresh your recollection, was this question asked you and you made this answer:
'Mr. Gillis (defendant's counsel): Now, wait a minute. Is the prosecutor attempting to impeach his own witness?
'Mr. Kotelly: Refreshing recollection.
'Mr. Gillis: I object. If he is using it for the purpose of impeachment it is all right.
'The Court: Well, can't he use a statement for purposes of refreshing recollection?
Mr. Gillis: He can possibly, but if it is going to be a leading question.
'The Court: What you mean is there has been no foundation.
'Mr. Gillis: There is no foundation laid here.
'The Court: There isn't anything in this record yet showing that she has been unable to recollect anything.
'Mr. Kotelly: I asked if anything else was said and she said no. Now I am refreshing her recollection pertaining to that phase of it. That is the question.
'The Court: You are now referring to this occasion on September 2, 1959?
'Mr. Kotelly: September 11th, 1959--no, August the 11th, I am referring to that.
'The Court: Let's see. You asked her what the doctor said and the doctor said it was all over. Then you asked what, well, did he say anything else.
'Mr. Kotelly: That is right.
'The Court: I see. That was on August, the 11th.
'Mr. Kotelly: The 11th.
'The Court: Yes, that is right.
'Mr. Kotelly: I am refreshing her recollection if this question was asked her in the statement and she made this answer.
'Mr. Gillis: Again, I don't think the proper foundation has been laid to do this. If he is impeaching her testimony today I don't think he should be----.
'The Court: Well, he said it is refreshing recollection not impeachment, not impeaching testimony. He said that she made a statement at the prosecutor's office but you said that nothing else was said on August 11th. Now, if he claims something was and he wishes to refresh the witness's recollection it is proper to do so.
'Q. (By Mr. Kotelly, continuing) Now, do you recall this question being asked you by the assistant prosecuting attorney and you made this answer (reading):
'And your answer----
'Mr. Gillis: Now, wait. We have the question first. Let's see what her recollection is. I don't think he should read the answer. Do you recall this question being asked. I think that is as far as he should go at this time.
'The Court: Well, ask if she remembers that question.
'Q. (By Mr. Kotelly, continuing) Do you remember that question? A. Will you repeat it, please.
'Q. (Reading) A. Yes, I remember.
'The Court: Well, now, just a minute. If she remembers then you can ask her what she remembers.
'Q. Do you remember what your answer to that question was? A. I don't remember exactly what I said.
'Q. Well, now to refresh your recollection----
'Mr. Gillis: All right, again I think she doesn't remember exactly but she remembers the general tenor, or if she doesn't have, she doesn't have to use the exact words but she remembers it. I think she can answer it without leading on with this.
'The Court: Ask the witness if she has any recollection of what he said.
'Q. (By Mr. Kotelly, continuing) Well, do you recall what he said, what the doctor said to you after he made the examination on the 11th day of September, or on the 11th day of August, 1959, sorry? A. He says that it was all over and he went out of the room. That is all I can remember.
'Mr. Kotelly: Well, now I have a right to refresh her recollection.
'The Court: Well, now you laid a foundation for it. Go ahead.
'Mr. Gillis: Oh, wait. Again I am going to object. She remembers it. She remembers what?
'Mr. Kotelly: She just said she didn't remember.
'Mr. Gillis: I would like to ask one more question at this time.
'The Court: I don't think you have a right to interfere with this examination. She said she didn't remember anything more than that the doctor said it was all over.
'Mr. Gillis: All I am going to--she has read the transcript already this morning and if she can't remember for 15 minutes----
'The Court: I don't know whether she read it or not.
'Mr. Gillis: I would like to ask whether she has read it.
'The Court: While Mr. Kotelly is examining the witness I don't think you have a right to interrupt him.
'Q. (By Mr. Kotelly, continuing) Was this question asked you and you made this answer (reading):
Subsequently, Richard Warren, a boy friend of the girl's mother, was produced and examined as a prosecution witness. It is difficult to tell under what theory the prosecuting attorney was permitted to conduct the type of examination set forth below. He apparently felt he was doing it for the purpose of refreshing the recollection of the witness. However, the trial court seemed to permit it upon the theory of impeaching a res gestae witness.
'Q. (By Mr. Kotelly) Well, now do you remember making a statement in the prosecuting attorney's office on the second day of September, 1959. A. I don't know whether it was September, but I remember being in the prosecuting attorney's office.
'Q. You made a statement pertaining to the third day of August, 1959? A. After they had picked them up.
'Q. Pardon me? A. After they had picked up her mother and her aunt and had them locked up.
'Q. Then you went to the prosecuting attorney's office and made a statement? A. That I did.
'Q. You were asked questions and you made answers, isn't that true? A. That is right.
'Q. Now, do you recall as to whether this question was asked you by the assistant prosecuting attorney, Mr. Nissen, and you made this answer (reading):
'Mr. Gillis: I object. Let's have the answer to the first part whether he remembers the question.
'Mr. Kotelly: All right.
'Q. (By Mr. Kotelly, continuing) Were these questions asked of you and you made these answers (reading):
'Mr. Gillis: I am going to object unless a proper foundation is laid for this reference to a previous statement.
'The Court (Mr. Kotelly?): Well, you wanted me to go back to the date, he wanted me to go back to the date, if your Honor please, and I think I have a righst to go ahead and satisfy his objection.
'The Court: Are you trying to satisfy his objection and by going back to this particular time?
'Mr. Kotelly: That is right.
'Mr. Gillis: What is the purpose of the reference to the previous statement. I think we need a foundation.
'The Court: You made an objection and Mr. Kotelly was asking a question and you made an objection to it....
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...position than are we to judge of the propriety of a delay.' People v. Foote, 93 Mich. 38, 52 N.W. 1036, 1037.'In People v. Knox, 364 Mich. 620, 111 N.W.2d 828 (1961), this Court commented: 'It has been repeatedly recognized by this Court that a trial judge has discretion in granting or refu......
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Hileman v. Indreica
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