State v. Gruick

• Decision Date: 20 June 1921
• Docket Number: No. 10.,10.
• Citation: 114 A. 547
• Parties: STATE v. GRUICK.
• Court: New Jersey Supreme Court

114 A. 547

STATE

v. GRUICK.

No. 10.

Court of Errors and Appeals of New Jersey.

June 20, 1921.

Error to Court of Quarter Sessions, Essex County.

Anna Gruick was convicted of procuring the miscarriage of a named person, and she brings error. Judgment reversed, and record remitted for new trial.

Frank E. Bradner, of Newark, for plaintiff in error.

J. H. Harrison and John A. Bernhard, both of Newark, for the State.

SWAYZE, J. The defendant was indicted for and convicted of procuring the miscarriage of R. M. The Supreme Court affirmed the conviction. The only question to be discussed is whether or not the trial judge properly allowed Dr. L. to testify as to his conversation with Mrs. M. in the presence of Dr. D. with a notary, Huelsenbach; the defendant being absent. The statement was obtained and written down by Huelsenbach and signed by Mrs. M. on the day of her death. It was obtained by questioning by the doctor. On his examination in chief he failed to testify to parts of the statement. It was shown to him on his cross-examination, only to refresh his recollection. Objection was made, but he was allowed to use the statement after he had testified that his recollection was refreshed. He was then asked to state the rest of the conversation on which he based his opinion that she died as a result of malpractice. The statement was made several days after he had been called to attend her, and had then already made up his mind that her condition was due to abortion, and had rendered the medical service he thought necessary. It is not questioned that he was right in what he did. He was then asked to state the rest of the conversation on which he based his opinion (the opinion that he had formed several days before). He said that he made Mrs. M. say that she had an abortion performed, and in answer to the question as to the rest of the conversation he testified that "she said she went to a woman."

The state considered that important, for the purpose of showing that the operation may have been performed by the defendant. It was not for the purpose of diagnosis, for that had already been made; it was not for the purpose of treatment, for treatment had been had; no further was proposed, and her death was hourly expected. The Supreme Court held that the witness was entitled to examine the paper for the purpose of refreshing his recollection with relation to any facts material to the issue, notwithstanding that the writing was done by a person other than the witness, provided that the witness knew the contents of the paper at the time it was written. We do not question that it would have been proper to allow Dr. D. to refresh his recollection by an examination of the paper, if the fact to be proved, or statement meant to be and in fact elicited from the witness, was relevant or material. This was not the case. While statements, which would otherwise be hearsay, may be admissible sometimes, when made to a physician, that is not always true.

The rule has been settled by the Court of Errors and Appeals in Consolidated Traction Co. v. Lambertson, 60 N. J. Law, 452, 38 Atl. 683, following the opinion of the Supreme Court in State v. Gedicke, 43 N. J. Law, 86. The court there said:

"It is well settled that the declarations of a patient as to his symptoms, made to his physician or surgeon for the purpose of treatment, are admissible in evidence. * * * While such declarations partake of the nature of hearsay, they derive some credibility beyond that of hearsay, from...