Jones v. State

Henderson, J.,

filed the following dissenting opinion, in which Delaplaine, J., concurred.

I agree with the statement in the majority opinion that the hospital record was admissible and that its admission, in a criminal case, would not violate the constitutional right to “confrontation”. Indeed, I think it would have been admissible even in the absence of statute. Code (1951), Art. 35, sec. 68. In Globe Indemnity Co. v. Reinhart, 152 Md. 439, 445-452 , decided before the first adoption of the statute in 1929, a hospital record, identified by the entrant, recorded pertinent information given to her by a nurse who was not called. Despite its hearsay character, it was held to be admissible under an exception to the hearsay rule “based upon the circumstantial guarantee of trustworthiness of the record itself, and upon the inconvenience and well-nigh impossibility of producing witnesses who could from their own personal knowledge testify to the truth of the entries made.” This decision was cited with approval by Wig-more as a “liberal” one, under a section dealing with the cases, pro and con, on the question independent of statute. 5 Wigmore, Evidence (3d ed.) § 1530. See also, Notes 75 A. L. R. 378.

As pointed out in the majority opinion, the recent cases under our statute dealt with an extension of the common law rule to include instances where the entries were made in connection with case histories of occurrences prior to *538 the patients’ admission, and not with medical findings carrying their. own intrinsic guarantee of reliability. Even before the statute was amended in 1947 to specifically include “profession” within the term “business”, we held without reference to the statute, and following Wigmore despite a split in the authorities, that testimony. of -the attending physician based in part on information received from a nurse or attendant was admissible. Yellow Cab Co. v. Henderson, 183 Md. 546, 553 . Since the medical findings in the instant case would have been admissible regardless of the statute, the argument that a change in the common law rule deprived the accused of a procedural right, existing when the Constitution was adopted, falls to the ground. I agree with the majority, however, that under the cases cited'the contention would be without merit, even if the evidentiary rule had been changed.

For all practical purposes, I think the hospital record in the instant case was put in evidence. It was produced by Dr. Hanson, shown to opposing counsel, and Dr. Hanson held it in his hands when he took the stand. Upon objection to testimony based upon the record, on the ground that it was not made as a result of an examination by the witness, the State’s Attorney brought out that Dr. Hanson had been in charge of the department and the record had been made under his supervision. Thereupon, the State’s Atotrney remarked: “Now, we think the records are admissible”, and a motion to exclude on the ground that “these records are hearsay” was overruled. True, they were not marked as an exhibit or read to the jury. Reading such records would ordinarily have little significance to laymen, and the mere failure to have the stenographer stamp a document, that had been offered and ruled in, is clearly not controlling. Dr. Hanson was then asked to tell the jury “referring to the hospital records which you have, * * * just what they reveal in regard to the patient * * There was no objection on the ground that the record had not been formally introduced.1 His reply was that *539 the patient was admitted on March 13, 1950, “at which time the examination by Dr. Parham, our resident at the time, revealed a recent pregnancy which had been aborted, or miscarried, if you prefer that term, and all of the pregnancy tissue had not been removed; part of it remained in the cavity of the uterus. * * There was no motion to strike on the ground that the answer was not responsive, or on any other ground. The witness was qualified as an expert and could properly be asked to explain to the jury the medical significance of the “cold words” of the entries, or even to express an opinion based thereon. In Bethlehem-Sparrows Point Shipyard v. Scherpenisse, 187 Md. 375, 379 , and Marshall v. Sellers, 188 Md. 508, 517 , it was held that testimony by medical experts, based in large part upon facts gleaned from a perusal of hospital and autopsy records, was admissible. See also Industrial Service Co. v. State, 176 Md. 625, 634 .

In the instant case it is not entirely clear whether the testimony of Dr. Hanson as to the pregnancy and abortion was the recorded conclusion of Dr. Parham, based upon symptoms revealed by his examination and other scientific data, or the conclusion of the witness, based on Dr. Parham’s examination and other data. But, assuming the record to be in evidence, the testimony would be admissible on either theory. Counsel for the accused had an opportunity to examine the record and to cross-examine the witness in regard thereto. He did both. In fact, he brought out that the witness had not personally examined the patient, and that the findings recorded were those of Dr. Parham and Dr. McCullough, the hospital pathologist. Dr. Hanson never claimed to be the attending physician, and I do not see how the jury could possibly have been misled into thinking that he was. On a retrial the same questions could properly be put to Dr. Hanson, provided the stenographer is called upon to use his rubber stamp. Moreover, the importance of his testimony seems greatly exaggerated. There can be no reasonable doubt that the prosecuting witness had a miscarriage, or that the records showed this fact, *540 which was virtually undisputed. The real issue in the case was what, or who, produced the miscarriage, not the fact that she had one. Cf. Kiterakis v. State, 144 Md. 81, 83 .

It is said, however, that because of the colloquy between the question and answer, wherein the witness stated that he could testify without using the record, which the State’s Attorney said he would prefer, followed by the court’s statement that he understood the records would be used to refresh recollection, a prejudicial error was committed. Of course, the witness could not refresh his recollection by a record he did not make and as to facts of which he had no personal knowledge. But there are several answers to this contention. First, there was no objection. The court was evidently under a misconception as to what the testimony might be. If the witness had personal knowledge he could properly use the record to refresh his recollection. When it appeared, as it did in the next sentence spoken by the witness, that he had no personal knowledge, defense counsel could have, but did not, move to strike it out on this ground. Defense counsel thought so little of the point that the incident is not relied on in the brief, or even mentioned in the-statement of facts. The only points argued are that the records are inadmissible and in violation of a constitutional right, and that any testimony based thereon is inadmissible as hearsay. I think all of these contentions are unsound. The only ruling objected to was correct.

What the witness evidently had in mind was simply that he had studied the record both at that time and at the time of the previous trial, hence he was so familiar, with the findings contained therein that he did not need to refer to it in order to state the substance of those findings. If the jury was led to believe, from the court’s comment, that he had personal knowledge, it was immediately made clear by his answer to the question as to what the record showed, and by his subsequent cross-; examination, that he had no personal,knowledge. I can *541 see no prejudice to the accused in any view of the case. I think the judgment should be affirmed.

I am authorized to say that Judge Delaplaine agrees with the views here expressed.