*1 PEOPLE LEWIS. of Witnesses. Criminal Law —Confrontation
1. In a accused has a to be confronted case the criminal may questioned against him order the witnesses (Const. 1908, art. 19). 2, Practicing Without a License —Evidence— Medicine 2. Same — Hospital Record. Hospital record, made a nurse room and held, produced in court inadmissible highly prosecution claimed where preg- practicing medicine of evidence of former nant woman and its statement treat- ment sueh record was 3. Same —Statutes—Evidence—Entries Business —Confrontation Statute tion or events is entitled to be confronted as amended of business admissible them rendering (Const. 1908, inapplicable Act No. entries art. of Witnesses. 15, proof to criminal 19; 2, Pub. writings acts, Acts Made in Usual cases transactions, since an accused is the usual course him and 1929, occurrences Course 14207, ques- JJ., dissenting. C. Bushnell, McAllister Butzel, Appeal City from Recorder’s Court for the April (Docket Detroit. Submitted 11,1940. No. 117, 40,808.) Calendar No. Decided 1940. October Paul Lewis ivas convicted of without a license. Reversed and new trial appellant. Harold E. Bledsoe, Attorney Read, Thomas General, Duncan C. Prosecuting Attorney, McCrea, and William L. Graham, Brunner John K. Assistant Prosecu- ting Attorneys, people. for the v. Lewis. (dissenting). con- Defendant was *2 city of of Detroit in recorder’s court the victed offense of the claiming appeals, the trial erred per- and in exhibits in certain
mitting
testimony
not
who were
the
of.
not
on the information and were
indorsed
rebuttal
It
there was a re-
witnesses.
is also contended that
repeated
of
the
error because
allusions to
versible
to
as a
reference
his home
defendant
“doctor” and
court erred
“office”;
an
the trial
as
hearsay testimony
eliciting
from a
certain
people
the
the
was
of
There
had
himself out as a doctor and
defendant had held
young
pregnant, for the
a
who was
woman,
treated
procuring
Defendant did
an abortion.
testify in his own defense.
not
regard
With
to the witnesses whose names
no
was
not indorsed on the information,
upon
ground.
this
Such
was
it had
remote from the issues that
brief
so
bearing upon
practically
nothing
and included
case,
no
the
the
Regarding
the erroneous introduction
exhibits
case,
trial of the
one of such exhibits was
on the
police
hypodermic
was taken
needle which
of his
officer from defendant’s room at
time
were records
other two exhibits
arrest; and the
hospital.
and from a
from the
of health
board
that it was
hypodermic
for the defendant contends
Counsel
permit
the introduction
for the reason that
secured
evidence,
needle in
When
unlawful search and seizure.
an
no
he had warrant.
house,
defendant’s
officerwent
opened
he
door,
someone
it,
He knocked on
he entered
in. As soon as
was told
come
doorway
through
to the left
he
house,
saw,
young
woman,
another
who was
defendant and
room,
sitting
pulling
on a
her cloth-
bed and
ing
down. The officer
into the
room,
went
reply
inquiries,
girl
pres-
told him in
his
ence of the
had come to the de-
defendant that she
fendant for medical examination and treatment. On
nearby
batting
the table
was a roll of cotton
hypodermic
two
needles. There were several bottles
opposite
of clear
oil cloth
on a
fluid
cabinet
and an
bed,
a rubber
mat on the bed.
officer
physician;
asked
if
defendant
he were a licensed
reply
and on his
that he
the officertook
not,
needles and arrested the
There
illegal;
claim that
arrest
and the officerwas
guilty
of no unlawful search and seizure. See
v. Cona,
Exhibit 2, a record, introduced over for counsel It was testified clerk who record did not make complaining and showed that entries, witness hospital vaginal had been admitted and that laboratory. though smears were sent to the Even erroneously portion admitted, such of the prejudicial record could not be said to be to defend- only ant. It was when defendant’s counsel asked have the remainder of the record introduced appeared it complaining wit- previously pregnancy. ness had been treated for advantage Defendant cannot take of the erroneous requested admission evidence which his counsel prejudicial to have introduced; error did result therefrom.
Exhibit 3 awas record from the board of health. It showed the address Adele Lester, for witness to be that of defendant’s home, merely previous testimony confirmed her that she n People Lewis. had lived at defendant’s residence between October, 1938. There 1937, and seems to have been April, its record; valid introducing” admission was not
In answer to the claim that the court elicited hear- of conclusions from a witness for say questions the court’s prosecution, only pre- in fact liminary, and answers sustained the claim of a contention is witness the defense. The that reference the title of “doctor” to defendant resulted in to him before jury.
claim is without merit. of defendant’s One own wit- referred to him nesses in this manner. His counsel did the same repeatedly thing. On occasion any which the counsel he im- prosecuting” did likewise, corrected mediately and from himself, everything appears, an unintentional slip tongue.
We have considered other similar claims and find no error.
Judgment of conviction should be affirmed. O. J., concurred with
Btjshnell, and Rutzel, J. I find reversible Wiest, record without the maker calling thereof.
In a criminal case the accused has a
confronted
him. Constitu
tion of Michigan (1908), art.
19. See
*4
Lambert, Mich. 349 (
Sligh,
Dow,
The hospital record was not made examin- ing physician nurse room produced who testified: Michigan Beports. “The records were not under my super- vision nor I out; there when were made they weren’t written Dr. Kamish.”
As said prosecuting attorney his brief the exhibit corroborated the of the com- plaining
The record was inadmissible and highly prejudi- cial.
The that defendant prosecution claimed was prac- ticing medicine woman pregnant its statement of of former treatment record was
Act No. 15, Pub. Acts 1935, amending Laws (Comp. Supp. 1940, 14207, Stat. Ann. relative to entries 27.902), and writings made in the usual course of business, does not apply to criminal cases. conviction reversed, and a new trial JJ., concurred Chandler
Sharpe, North, "Wiest,. J. The late Justice took no Potter this decision.