1 Conn. Cir. Ct. 381 | Conn. App. Ct. | 1962
The defendant was found guilty, after trial to a jury, of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227 of the General Statutes. In his appeal the defendant did not request a finding, nor was a finding necessary. The appeal is confined to certain questioned rulings on motions and evidence. The defendant has assigned error in the action of the court (1) in granting the state’s motion for a mistrial and discharge of the jury because one of the witnesses for the prosecution was unavailable owing to physical injury; (2) in making the defendant plead not guilty twice to the same offense (double jeopardy); (3) in admitting in evidence a medical report of a deceased physician as a business entry of the Farmington police department; (4) in ordering defendant’s counsel, while cross-examining a witness for the state, to make a full exhibit of notes from which the witness had been testifying, when the defense attorney had offered to make these notes an exhibit for identification only, and in refusing to allow the defense attorney to continue cross-examining the witness about the notes unless they were entered as a full exhibit.
The nature of this appeal makes unnecessary an examination of the transcript of evidence which has been filed, except as it may be needed for the purpose of establishing the facts bearing upon the claimed errors.
This motion, which in effect was one for mistrial, was opposed by the defendant on the following grounds: The case had been marked ready for trial notwithstanding the happening of certain contingencies which were stipulated; there was no basis for a mistrial; no other case could take precedence until the defendant’s case was finally disposed of; adjournment of the ease for one week would be unreasonable.; the defendant was entitled to be tried by the jury already selected; the defendant was entitled to a speedy trial; and if a mistrial were directed, any further proceedings against the defendant would constitute double jeopardy. The court declared a mistrial and discharged the jury.
On January 30, the defendant was again put to plea upon the same information. He declined to stand on the plea already entered and, upon being
In granting or denying a motion for a mistrial, the court is vested with a wide discretion, and its action will not be disturbed unless the discretion was clearly abused. Ferino v. Palmer, 133 Conn. 463, 466. It is generally recognized that the jury may be discharged after they have been impaneled and sworn — but before testimony is introduced — if there is reasonable cause for such action; and this may be done without defendant’s consent. 15 Am. Jur. 75, § 406. The reasons assignable for such action are as numerous as the exigencies and hazards that are imminent in all human activity, and a recital of the various occurrences which have been held to constitute cause for mistrial would serve no enlightening purpose. Many of such cases have been set out in State v. Allen, 46 Conn. 531, 543, and State v. Lee, 65 Conn. 265, 273. An early review of the law on this question is contained in State v. Woodruff, 2 Day 504, wherein the decision of Judge Kent in People v. Olcott, 2 Johns. Cas. 301 (N.Y.), appears (p. 507) in a footnote. Judge Kent cited precedent (p. 512) that “the question was not capable of being determined by any general rule, for that none could govern the discretion of the court in all possible cases and circumstances.”
The underlying principle by which courts are authorized and empowered to discharge juries from further consideration of a case, without infringing on the rights of an accused, had early been stated by Mr. Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, and it appears to be as valid today as it was in 1824: “We think, that in all
In the case before us, the defendant had no right to have the trial go forward when it became known that the absence of a material witness might defeat the state’s case. This circumstance was not due to any failure, neglect, or lack of preparation on the part of the prosecution. Due process of law does not mean that the rights of the public must be disregarded by pursuing a course manifestly unjust and fatuous. The court was faced with the choice of discharging the jury or continuing the case. If
The defendant also claims error in that the trial in this case exposed him to double jeopardy. What we have said above makes unnecessary any extensive consideration of this claim. The rule in our state as to what constitutes double jeopardy is stated in the leading case of State v. Lee, 65 Conn. 265, 273: “And so the putting in jeopardy means a jeopardy which is real and has continued through every stage of one prosecution, as fixed by existing laws relating to procedure; while such prosecution remains undetermined the one jeopardy has not been exhausted. The jeopardy is not exhausted by an indictment followed by a nolle, nor in this State by a nolle after the trial has commenced when the prisoner does not claim a verdict, . . . nor by the discharge of a jury . . .” (citing many cases where juries had been discharged for various reasons). See also State v. Donnelly, 124 Conn. 661, 663; State v. Pal-ko, 122 Conn. 529, 539; State v. Muolo, 118 Conn. 373, 381; State v. Garvey, 42 Conn. 232, 233; State v. Benham, 7 Conn. 414, 418. The trial of the accused was not a new case but a continuation of the same original cause. There Avas only one prosecution, and but one placing of the defendant in jeopardy. No further arraignment was required, since the original plea of not guilty stood until the case was disposed of by judgment. The action of the defendant in ob
In the course of the trial, Sergeant Caleskie of the Farmington police department was presented as a witness for the state. He testified as to his own personal observations of the condition of the accused at the time of the arrest and also as to the results of an examination of the accused at the police department. This testimony was based upon a report made by the witness at the time of the examination. In this report and in his testimony, the sergeant concluded that at the time of the arrest and the examination the accused was under the influence of alcohol and unfit to operate a motor vehicle.
The sergeant was next questioned concerning the practice of the department with regard to medical examinations of persons accused of operating under the influence of intoxicating liquor. In accordance with this practice, he testified, an officer of the department, together with the accused, was sent to Doctor Crawley in West Hartford. The physician then conducted an examination of the accused and filled out, in duplicate, a form prepared by the police department. This form consisted of a mimeographed sheet with the heading “Farmington Police Department” and contained a large number of questions calling for either short written answers or the encircling of certain items printed thereon. Thus, for example, there were legends and encircled words as quoted: “Breath: strong; Color of face: pale; Mental state: polite; Eyes: watery, bloodshot; Pupils: dilated; Balance: wabbling; Walk: stumbling; Turning : uncertain; Finger to nose test: uncertain; Choice of words: jerky.” At the end, and in a place reserved for signature, appeared the following: “George A. Crawley M.D., 12-24-61, 4:47 AM,” and
This paper was offered in evidence and admitted, over defendant’s objection, as a business entry of the police department. It was testified that the examining physician had filled out the paper and signed it and it was then returned to the police department by the attending officer. The principal objection of the defandant was that the statement, admitted and marked exhibit A, did not qualify as a business entry under § 52-180 of the General Statutes.
Under our present rule, a variety of records, books, and papers have been allowed in evidence, as for example, books of account, hospital records, factory memoranda, factory medical records, nursing records, welfare investigator’s data, and police reports. State v. Hayes, supra; Borucki v. Mac-Kenzie Bros. Co., supra; D’Amato v. Johnston,
For a record to be admissible under the statute, it is required to meet three qualifications: (1) It must be made in the regular course of business. (2) It must be the regular course of business to make such record. (3) It must be made at or near the time of the act, transaction or event. Szela v. Johnson Motor Lines, Inc., supra, 723. “[T]he mere fact that a record is generally admissible under . . . [the statute] does not mean that anything and everything contained in the record is necessarily admissible in a given case.” Maggi v. Men-dillo, 147 Conn. 663, 667. In a civil suit involving an expression of opinion in a hospital record concerning the state of intoxication of the person treated, such entry is admissible when setting forth a diagnosis of a patient’s illness. D’Amato v. Johnston, supra, 58; Borucki v. MacKenzie Bros. Co., supra, 102. To be admissible, the record must be one based on the entrant’s own observation or upon information of others whose duty it is to transmit it to him, all of whom must be members of the organization whose record it is. D’Amato v. Johnston, supra, 60. Thus, where a portion of a hospital record incorporated in the attending physician’s report was offered through the physician, it was held not admissible as a record of the hospital. Orzechowski v. Higgins, 146 Conn. 463, 466. And it has been held that a report made by a roentgenologist to a refer
Police reports may be introduced in evidence under our statute provided they meet the tests specified. Statements of volunteers and of those outside of the police department, who are under no duty to make observations or record them as members of the police organization, although made part of the police records or reports, are treated as hearsay and do not come under the exception provided by the statute. That is particularly true of reports containing statements of witnesses as to their own observation, opinions or speculations. Sheary v. Hallock’s of Middletown, Inc., 149 Conn. 188, 194; see note, 144 A.L.R. 727, 729.
There is no evidence that Dr. Crawley was a member of the Farmington police department or under any duty to the department to make the report which was admitted in evidence. The fact that his observations and opinions were expressed on a mimeographed form of the police department does not make it a record of that department. It was no more and no less than a statement of the physician’s own observations and opinions, made in the course of his own medical practice. It was not offered as a record made by Doctor Crawley and, if it had been, there is no evidence under which it would have qualified as such under § 52-180 or any other pertinent exception to the hearsay rule. The admission
We consider briefly the final error assigned, since it is likely that the same questions may arise upon a new trial. During the cross-examination of a police sergeant, defense counsel took from the witness a memorandum evidently made by him and from which he had testified. He then proceeded to question the witness concerning items obviously contained in or suggested by the memorandum. Such procedure was improper and not within the allowable scope of a cross-examination. Authorities on this point are so abundant and uniform that the cardinal rules involved may be stated without elaborate citation.
A witness may use a memorandum to refresh his recollection if it appears that such aid is indicated; his testimony, however, is that of his present recollection of a past matter and not of something of which he has no present knowledge except as derived by a reading of the memorandum. A memorandum used for the purpose of refreshing recollection may be one made by the witness or another. In itself it is not evidence. Opposing counsel may examine such a memorandum to make sure that it is what it purports to be and that a surreptitious use of a document is not being attempted. If use of the memorandum is questioned because, for example, it appears that the witness is reading from it and not testifying from a refreshed recollection, or because he is supplying from it facts which are not susceptible of being remembered without reliance on a record for exactness, or for other reasons of
Where a witness has no present recollection of a past matter and his reliance is entirely upon a memorandum from which he knows upon inspection that at some former time he had knowledge of the facts stated therein and that the statement is true, such memorandum may be admitted as a record of a past recollection. Neff v. Neff, 96 Conn. 273. In qualifying the memorandum as an exhibit, cross-examination of the witness is permitted to determine the existence or state of his present recollection, the circumstances surrounding the origin or authenticity of the proffered document, and the conditions and requirements relating to its admissibility. No cross-examination of the witness on the contents of the memorandum is ordinarily permissible, for if the witness had a present recollection of the contents the memorandum would not have been admitted.
In the present case, it appears that the memorandum may have been a business entry and that the witness had been reading from it. That had not been objected to. Proper procedure requires that such a record be introduced to prove its contents rather than to have the witness read from it. State v. Ferraiuolo, 145 Conn. 458, 464; Manfredi v.
It is not proper to conduct an interrogation before the jury on any document not in evidence or that will be withheld from the jury’s inspection. Johnson v. Charles William Palomba Co., 114 Conn. 108, 115; see Voyles v. Columbia Terminals Co., 223 S.W.2d 870 (Mo.); 3 Wigmore, Evidence (3d Ed.) §§ 725-765 & Sup. Nor is it proper for counsel to abstract from a witness a memorandum used by him for an allowable purpose and, with such document displayed to the jury, create the impression that the credibility of the witness is being tested by the suggested contents of the document. Such tactics savor more of the theater than the courtroom.
Exhibits should not be marked for identification unless it is intended to offer them in evidence upon completing their qualification or unless they are so marked to protect the rights of the offeror in further proceedings. Absent such intention, the marking for identification tends to dignify the objects as exhibits in the eyes of the jury and should be avoided. State v. Schleifer, 102 Conn. 708, 722.
This assignment of error is without merit.
There is error, the judgment is set aside and a new trial is ordered.
"SeC. 52-180. admissibility op business entries and photographic copies. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of such act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. Such writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of such evidence, but not to affect its admissibility. . . . The term ‘business’ shall include business, profession, occupation and calling of every kind.”
The predecessor of $ 52-180, passed in 1931 (Cum. Sup. 1935, $ 1675c; Rev. 1949, $ 7903), replaced sections on the remedy of book debt and the rule of evidence which had been linked together in a separate chapter of the statutes. Rev. 1875, p. 471; Rev. 1888, $$ 1040, 1041; Rev. 1902, $$ 980, 981; Rev. 1918, $$ 6016, 6017; Rev. 1930, $$ 5877, 5878.