People v. Lewis
| Decision Date | 07 October 1940 |
| Docket Number | No. 117.,117. |
| Citation | 294 Mich. 684,293 N.W. 907 |
| Parties | PEOPLE v. LEWIS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Paul Lewis was convicted of practing medicine without a license and he appeals.
Reversed, and new trial granted.
Argued before the Entire Bench.
Harold E. Bledsoe, of Detroit, for defendant and appellant.
Thomas Read, Atty.Gen., and Duncan C. McCrea, Pros. Atty., and William L. Brunner and John K. Graham Asst. Pros. Attys., all of Detroit, for plaintiff and appellee.
I find reversible error in admitting the hospital record without calling the maker thereof.
In a criminal case the accused has a right to the confronted by the witnesses against him. Constitution of Michigan, Art. 2, § 19. See People v. Lambert, 5 Mich. 349, 72 Am.Dec. 49;People v. Slign, 48 Mich. 54, 11 N.W. 782;People v. Dow, 64 Mich. 717, 31 N.W. 597,8 Am.St.Rep. 873. This accords right of questioning.
The hospital record was not made by the examining physician but by a nurse in the admitting room and was produced in court by the record clerk of the hospital, who testified: ‘The records were not made under my supervision nor was I there when they were made out; they weren't written by Dr. Kamish.’
As said by the prosecuting attorney in his brief, the exhibit corroborated the testimony of the complaining witness.
The record was inadmissible and highly prejudicial.
The prosecution claimed that defendant was practicing medicine in treating a pregnant woman and in its statement of evidence of former treatment the hospital record was damaging.
Act No. 15, Pub.Acts 1935, 5 Comp. Laws Supp.1940 § 14207, Stat.Ann. § 27.902, relative to entries and writings made in the usual course of business, does not apply to criminal cases.
The conviction is reversed, and a new trial granted.
The late Justice POTTER took no part in this decision.
Defendant was convicted in recorder's court for the city of Detroit of the offense of practising medicine without a license, and appeals claiming that the trial court erred in admitting certain exhibits in evidence, and in permitting the testimony of witnesses who were not endorsed on the information and were not rebuttal witnesses. It is also contended that there was a reversible error because of repeated allusions to the defendant as a ‘doctor’ and reference to his home as an ‘office’; and that the trial court erred in eliciting certain hearsay testimony from a witness.
There was evidence on the part of the people that defendant had held himself out as a doctor and had treated a young woman, who was pregnant, for the purpose of procuring an abortion. Defendant did not testify in his own defense.
With regard to the witnesses whose names were not endorsed on the information, no objection was made upon this ground. Such testimony was not only brief, but so remote from the issues that it had practically no bearing upon the case, and included nothing to the prejudice of defendant.
Regarding the erroneous introduction of exhibits on the trial of the case, one of such exhibits was a hypodermic needle which was taken by a police officer from defendant's room at the time of his arrest; and the other two exhibits were records from the board of health and from a hospital.
Counsel for the defendant contends that it was error to permit the introduction of the hypodermic needle in evidence, for the reason that it was secured by an unlawful search and seizure. When the officer went to defendant's house, he had no warrant. He knocked on the door, someone opened it, and he was told to come in. As soon as he entered the house, he saw, through the doorway to the left in another room, the defendant and a young woman, who was sitting on a bed and pulling her clothing down. The officer went into the room, and in reply to his inquiries, the girl told him in the presence of the defendant that she had come to the defendant for medical examination and treatment. On the table nearby was a roll of cotton batting and two hypodermic needles. There were several bottles of clear fluid on...
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People v. Kirtdoll
...the jurisprudentially significant issue in this case. The issue was first raised almost 35 years ago by this Court in People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940). There we held that admission of such records in a criminal case 'without calling the maker thereof' would deny the accus......
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Melendez-Diaz v. Massachusetts
...hearsay exception). Three States once espoused the minority view but appear to have changed course to some degree: People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940) (hospital record describing victim's injuries inadmissible hearsay), overruled by Kirtdoll, 391 Mich., at 372, 217 N.W.2d, a......
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Melendez-Diaz v. Massachusetts
...hearsay exception). Three States once espoused the minority view but appear to have changed course to some degree: People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940) (hospital record describing victim's injuries inadmissible hearsay), overruled by Kirtdoll, 391 Mich., at 372, 217 N.W.2d, a......
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Melendez-Diaz v. Massachusetts
...hearsay exception).Three States once espoused the minority view but appear to have changed course to some degree: People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940) (hospital record describing victim's injuries inadmissible hearsay), overruled by Kirtdoll, 391 Mich., at 372, 217 N.W.2d, at......