State v. Guaraneri
| Decision Date | 29 October 1937 |
| Docket Number | No. 7876.,7876. |
| Citation | 194 A. 589 |
| Parties | STATE v. GUARANERI. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.
Concetta Guaraneri was found guilty of abortion, and she brings exceptions.
Exceptions sustained, and case remitted for new trial.
John P. Hartigan, Atty. Gen., and Hyman Lisker, Asst. Atty. Gen., for the State. Rosenfeld & Hagan and Charles J. McCabe, all of Providence, for defendant.
This is an indictment charging the defendant with the crime of abortion. The case was tried before a justice of the superior court sitting with a jury and resulted in a verdict of guilty. The defendant filed a motion for a new trial upon the usual grounds, which was denied by the trial court. The case is now before us solely on the defendant's exceptions to the rulings of the superior court admitting in evidence a hospital record of the Rhode Island Hospital, all other exceptions being expressly waived. These exceptions, numbered 1, 2, and 8 in the bill of exceptions, raise substantially the same question and therefore will be considered together.
At the time of the alleged offense, the defendant, a married woman, lived on Hart ford avenue in the city of Providence. Testimony in behalf of the State was to the effect that the complaining witness war brought to the defendant's home on January 28, 1936, by the person responsible for her condition, and that the defendant there per formed an abortion. The defendant, admit ting that the complaining witness had been at her home, firmly denied the charge.
Several police officers of the city of Providence testified that they found the complaining witness and the defendant in the defendant's house on Hartford avenue, and the on this occasion they took possession of certain instruments which were produced be the State at the trial and introduced in evidence. The two women were taken by the officers to police headquarters for questioning, and later the complaining witness was sent to the Rhode Island Hospital for treatment. She was discharged from that institution after two days as "improved" in condition.
Over the defendant's repeated objections; which are now represented by the above-mentioned exceptions 1, 2, and 8 of her bill of exceptions, the State was permitted to introduce in evidence the entire hospital record pertaining to the complaining witness while at the Rhode Island Hospital. This record consisted of a "Gynecological History and Examination," doctor's notes, laboratory record, clinical chart, treatment notes, and a "Blood Wasserman," so-called.
The whole record, without deletion or suppression of impertinent matters, was allowed in evidence through the record clerk of the hospital. She testified that it was a fixed rule of the hospital to keep an individual record for each patient; that, although all these records were in her custody, she had no personal knowledge of their contents; and that they were compiled by the internes and nurses. Referring specifically to the hospital record of the complaining witness in this case, she further testified that, following the usual custom of the hospital, she believed that an interne, Norman Margolius, had questioned the patient, written the history, and examined her; that this interne was no longer connected with the hospital; and that she did not know "where he is located." This witness did not even attempt to identify the handwriting on the gynecological history and doctor's notes as that of the interne, Margolius.
A close examination of the transcript in this case fails to disclose any attempt on the part of the State to find this interne and, with the exception of the statement from the hospital record clerk that she did not know "where he is located," there is no evidence of his nonavailability as a witness. In the circumstances, the defendant objected generally to the introduction in evidence of the entire hospital record and of the gynecological history in particular, on the grounds that such evidence violated the hearsay rule and also deprived her of the constitutional right to be confronted with the witnesses against her, as provided in article 1 § 10, of the Rhode Island Constitution.
In the absence of statute, there is a conflict of authority on the use of hospital records as independent evidence, although the weight of authority favors their admission under certain conditions. See note, 75 A. L.R. 378. The statute in this State which deals with hospital records relates to civil procedure only and is, therefore, inapplicable in criminal cases. Pub.Laws 1928, c. 1161.
In Ribas v. Revere Rubber Co., 37 R.I. 189, 91 A. 58, this court held that, even without statute a hospital record is competent and admissible in evidence as to all matters proper for inclusion in such a record, when the proper foundation has been laid, on the theory that it is a record kept in the regular course of business. When properly authenticated, a hospital record is admissible in evidence under this well-recognized exception to the hearsay rule only in so far as it relates to diagnosis, treatment, and medical history of the case; but nothing therein contained is admissible as evidence which has reference to the question of liability.
If a proper foundation is laid for the admission of a hospital record and it is restricted to the purpose and within the limits for which it may properly be used, we see no good reason for excluding it as competent evidence in a criminal case. In allowing such evidence, however, a sharp distinction is to be drawn between entries which record details necessary or helpful for diagnosis and treatment and those which narrate events concerning the patient that have no medical connection with either diagnosis or treatment. The former entries are admissible in evidence under the exception to the hearsay rule, as being entries made in the regular course of business, while the latter remain pure hearsay and should be excluded.
Before a hospital record is admissible in evidence, it must affirmatively appear that it was a matter of duty to keep such a record in the regular course of the hospital's business, and the person whose duty it was to keep that record, if living, competent, and within the jurisdiction, must testify that the entry was made in the regular course of business in his handwriting or under his immediate supervision. If the person who made the entries is dead, incompetent, or beyond the process of the court at the time of trial, other witnesses may identify the record as to how and by whom it was kept. See Ribas v. Revere Rubber Co., supra.
Applying these preliminary and necessary requirements of identification of the hospital record in the instant case, we find that the evidence before us completely fails to show any excuse for the absence as a witness of the interne who made that record. A record of this kind, especially in a criminal case, should be properly identified before it can be admitted in evidence. When resort is had to evidence of this character, justice requires that a proper foundation be laid by proof that the person who made the record is dead or physically or mentally unable to testify, or out of the jurisdiction, or, if his whereabouts are unknown, that diligent effort was made by the person offering such proof to locate him. In this case the State...
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Gregory v. State, 1411
...Amendment, whether or not the trial is before a jury. 16 The Court cited five out-of-State cases as authority. In State v. Guaraneri, 59 R.I. 173, 194 A. 589 (1937), appellant, charged with performing an abortion, contended that the admission of a hospital record "under any circumstances" v......
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People v. Kirtdoll
...v. Tims, 9 Ohio St.2d 136, 224 N.E.2d 348 (1967), 13 which is a rape case specifically relying on Lewis. However, State v. Guaraneri, 59 R.I. 173, 181--182, 194 A. 589 (1937) at least partially supports Lewis, although it said that the introduction of hospital records did not violate the co......
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State v. Contreras, 266-E
...the test, and they are inadmissible unless they form a part of the res gestae. Mott v. Clarke, 88 R.I. 257, 146 A.2d 924; State v. Guaraneri, 59 R.I. 173, 194 A. 589; 6 Wigmore, Evidence (3d ed.) § 1722, pp. 74-75; McCormick, Evidence, §§ 266-267, pp. The foregoing general principles, in ad......
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State v. Jalette
... ... Cote, 108 N.H. 290, 235 A.2d 111 (1967); Whitty v. State, 34 Wis.2d 278, 149 ... N.W.2d 557 (1967). This principle is merely an expression of the rule which bars the state from the initial introduction of evidence of the accused's bad character. See State v. Guaraneri, 59 R.I. 173, 194 A. 589 (1937). Thus, the state may not present evidence of other criminal activity by the accused unless the evidence is "substantially relevant for some other purpose than to show a probability that he has committed the crime on trial because he is a man of criminal character." ... ...