Spears v. State, 45961

Decision Date09 November 1970
Docket NumberNo. 45961,45961
PartiesLea SPEARS v. STATE of Mississippi.
CourtMississippi Supreme Court

Roland C. Lewis, Jackson, W. M. Conerly, Vicksburg, for appellant.

A. F. Summer, Atty. Gen. by Velia Ann Mayer, Special Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice:

Mississippi Constitution, Article 3, Bill of Rights, section 26 (1890) provides in part as follows:

In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; * * * (Emphasis added.)

The appellant was tried and convicted of the crime of abortion in the Circuit Court of Warren County. One of the essentials of the crime is pregnancy.

During the course of the trial two doctors introduced as witnesses for the State were permitted to testify that the State's prosecuting witness was pregnant. One of the doctors stated that his opinion of pregnancy was based solely upon the laboratory report of his technician; that he had not examined the State witness. The other doctor also testified from a laboratory report made by a laboratory technician through he had on one occasion, in an emergency situation subsequent to the alleged abortion, personally examined the State witness.

The laboratory technicians were not offered as witnesses. The doctors' testimony, though sworn, was merely a reiteration of that which had been related to them by unsworn witnesses. This was hearsay evidence (Dennis v. Prisock, 221 So.2d 706 (Miss.1969); Hill v. Stewart, 209 So.2d 809 (Miss.1968); City of Laurel v. Upton, 253 Miss. 380, 175 So.2d 621 (1965); and Wild v. Bass, 252 Miss. 615, 173 So.2d 647 (1965)) which denied the defendant the basic and fundamental right to be confronted by the witnesses against her as well as the right of cross-examination. This was error of major proportion, requiring the case to be reversed and prompting the statement that it is more the duty of the State's prosecutor to safeguard the constitutional rights of a defendant than to seek conviction without them.

We find no merit in the other assignments of error.

Reversed and remanded.

ETHRIDGE, C.J., and RODGERS, JONES, BRADY, INZER and SMITH, JJ., concur.

ROBERTSON, J., and GILLESPIE, P.J., dissent.

ROBERTSON, Justice (dissenting):

I respectfully dissent. If admitting the testimony of Dr. William P. Featherston an acknowledged expert and specialist in the field of pathology, and also a co-owner of the Bratley-Featherston Medical Laboratory, was error, then in my opinion it was harmless error.

The State's prosecution witness was a nineteen-year old young lady. It was she who became pregnant and it was she on whom the abortion was performed. She was the accuser. The defendant was confronted with her accuser and the accuser was subjected to a grueling and rather cruel cross-examination.

The accuser testified in detail as to how she knew she was pregnant. There was no doubt in her mind that she was pregnant, and there was no doubt in the mind of the defendant who performed the abortion and was paid $150.00 cash for performing it.

The testimony of Dr. William P. Featherston and Dr. Calvin Hull was pure surplusage. Pregnancy had already been proved by the testimony of the victim herself. The State's evidence, exclusive of the doctors' testimony, met the burden on the question of pregnancy. The defense of the appellant was that she did not know, had not seen, and had nothing whatsoever to do with the prosecuting witness. The defense was not based in any way on whether or not the prosecuting witness was pregnant.

I would call attention to the fact that Dr. Featherston had at the trial his official office file specifically labeled with the name of the prosecution witness alone. He referred to it in his testimony and never did appellant ask to see the file and its contents. Dr. Featherston testified that the pregnancy test was made in his office, by a trusted employee, under his supervision and control.

Ordinarily, Bratley-Featherston Medical Laboratory never sees the patients. Specimens and samples are forwarded to them from all over the state by the patient's own doctor, and the written report is sent to that doctor. It just so happened in this case that the patient went directly to the Medical Laboratory.

With reference to official business records this Court as far back as 1908 in the case of Grenada Cotton Compress Company v. Atkinson, 94 Miss. 93, 47 So. 644 (1908), had this to say:

'We, desire, however, to give our approval to the admirable statement of the modern rule contained in Wigmore on Evidence, § 1530. It is there said: 'The conclusion is, then, that where an entry is made by one person in the regular course of...

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    • June 25, 2009
    ...138 Idaho 908, 912, 71 P.3d 1055, 1059 (2003) (laboratory drug report inadmissible under state hearsay rule); Spears v. State, 241 So.2d 148 (Miss.1970) (nurse's observation of victim inadmissible under state hearsay rule and constitution); State v. James, 255 S.C. 365, 179 S.E.2d 41 (1971)......
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    • June 25, 2009
    ...138 Idaho 908, 912, 71 P.3d 1055, 1059 (2003) (laboratory drug report inadmissible under state hearsay rule); Spears v. State, 241 So.2d 148 (Miss.1970) (nurse's observation of victim inadmissible under state hearsay rule and constitution); State v. James, 255 S.C. 365, 179 S.E.2d 41 (1971)......
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    ...138 Idaho 908, 912, 71 P.3d 1055, 1059 (2003) (laboratory drug report inadmissible under state hearsay rule); Spears v. State, 241 So.2d 148 (Miss.1970) (nurse's observation of victim inadmissible under state hearsay rule and constitution); State v. 129 S.Ct. 2561James, 255 S.C. 365, 179 S.......
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