Ward v. Com.

• Decision Date: 05 September 1975
• Docket Number: No. 741101,741101
• Citation: 216 Va. 177,217 S.E.2d 810
• Parties: John Lewis WARD, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 810

217 S.E.2d 810

216 Va. 177

John Lewis WARD, Jr. v.COMMONWEALTH of Virginia.

Record No. 741101.

Supreme Court of Virginia.

Sept. 5, 1975.

John Dirffie Tyler, Richmond, for plaintiff in error.

Alan Katz, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

PER CURIAM.

A jury convicted John Lewis Ward of voluntary manslaughter and fixed his punishment at three years in the penitentiary.

During an argument on November 26, 1973, Ward shot Benjamin Daniel in the head.Daniel remained in the hospital until his death on February 6, 1974.Dr. R. C. Henry, Medical Examiner for the City of Richmond, performed a post-mortem examination.His report listed six 'pathological diagnoses' and cited '(g)unshot wound of head' as the 'probable cause of death.'Dr. Henry died before Ward was brought to trial.

Over defendant's objection, the autopsy report was admitted into evidence; it was the only proof of the cause of death.

While autopsy reports and duly attested copies thereof are admissible in evidence was provided in Code§ 19.1--45 (Repl.Vol.1960), ¹'only facts contained in the certificate are accorded the dignity of prima facie evidence.'Robertson v. Commonwealth, 211 Va. 62, 67--8, 175 S.E.2d 260, 264(1970).Although signed by the decedent's attending physician, a statement in a death certificate concerning the cause of death 'was but the expression of an opinion' and 'was not, therefore, competent to show the cause of the decedent's death.'Edwards v. Jackson, 210 Va. 450, 453, 171 S.E.2d 854, 856(1970).We have only recently declined to extent the shopbook exception to the hearsay rule to 'include opinions and conclusions of physicians or others recorded in hospital records.'Neeley v. Johnson, 215 Va. 565, 571, 211 S.E.2d 100, 106(1975).

Dr. Henry's recorded statement was an expression of opinion and, standing alone, was incompetent to show the cause of Daniel's death.Since there was no other proof of the cause of death, we hold that the evidence was insufficient to support the verdict.The judgment is reversed and the case is remanded for a new trial if the Commonwealth be so advised.

Reversed and remanded.

1' § 19.1--45.Reports and records received as evidence.--Reports of investigations made by the Chief Medical Examiner or his assistants or by medical examiners, and the records and reports of autopsies made under...