People v. Fritch

136 N.W. 493, 170 Mich. 258, 1912 Mich. LEXIS 818

• Court: Michigan Supreme Court
• Decided: May 31, 1912
• Docket: Docket No. 153
• Status: Published

Opinion

Ostrander, J.

(after stating the facts). The principal questions presented by the record and argued in the brief are:

(1) Was it competent to prove the declarations of the deceased to establish (a) her condition or supposed condition, and the purpose of her visit to Detroit; (6) what respondent said to her upon the occasion of her visit to him on August 26, 1909 ?

(2) If such testimony was competent for any purpose, was it competent to prove the corpus delicti?

(3) Was it competent for the people to prove that respondent, after his arrest, was given an opportunity to make, and did not make, a statement ?

(4) Were the hypothetical questions propounded to the medical witnesses improper (as) because not calling for expert or medical opinion, (6) because embracing essentially the question which it was for the jury to answer ?

(5) Was the court in error in instructing the jury that they might determine to what extent untrue statements contained in the hypotheses of counsel for the people destroyed the reliability, or impaired the value, of the opinions based upon the hypotheses ?

(6) Was it error for the court to comment approvingly, but generally, upon the character and honor and learning of medical witnesses ?

(7) Was the instruction respecting the presumption of the innocence of respondent erroneous ?

(8) Was reversible error committed in the cross-examination of the respondent or by the conduct and statements of the prosecuting attorney ?

Complaint is otherwise made of the charge of the court and of refusals to charge as requested.

1. One issue of fact being whether the deceased was or was not pregnant, and the fact of. her pregnancy being one which the prosecution was required to prove, two other facts, and each of them, namely, that the deceased had not menstruated for two months and that she supposed herself to be pregnant, if established, tended to prove the fact in issue. The fact that an unmarried woman supposes herself to be in such a condition proves that her conduct has been such that the condition may exist; it tends to prove some derangement or interruption of normal functions, the natural and possible, if not the necessary and actual, result of her previous conduct. No witness having knowledge thereof testified to the first fact, but only to the relation or narration thereof by the deceased. The other fact, which involves the consciousness or mental state of the deceased, no one but her could have knowledge of except as the fact was disclosed by her conduct and by what she said. It is contended that the testimony received to establish these evidentiary facts was hearsay and inadmissible.

The deceased visited the office of respondent and had an interview with him on the evening of August 26th and she again visited his office during the afternoon of August 27th. These visits, so far as she was concerned, and with respect to the investigation now being conducted, were innocent or sinister according to her purpose in making them. The principal reason for excluding oral hearsay evidence — testimony of narrations or statements made by a third party to the witness — is that the original speaker cannot be cross-examined.

“It is not requisite that the witness should have personal knowledge of the main fact in controversy, for this may not be provable by direct testimony, but only by inference from other facts shown to exist. But it is requi- ” site that, whatever facts the witness may speak to, he should be confined to those lying in his own knowledge, whether they be things said or done, and should not testify from information given by others, however worthy of credit they may be. For it is found indispensable, as a test of truth and to the proper administration of justice, that every living witness should, if possible, be subjected to the ordeal of a cross-examination, that it may appear what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth.” 1 Greenleaf on Evidence (15thEd.), § 98.

The testimony of declarations made by a person is not always hearsay nor within the rule excluding hearsay testimony. There is respectable authority supporting the contention that in this case the testimony should have been excluded. There is also authority sustaining in part the ruling of the trial court. It is unnecessary to attempt a classification of the various cases, a large number of which have been examined. I shall confine myself to brief references to such as announce what I conceive to be the applicable rule.

In our own State, in People v. McDowell, 63 Mich. 229 (80 N. W. 68), declarations of the deceased, made when she left home, as to where she was going and whom she proposed to visit, were held admissible.

In State v. Hayward, 62 Minn. 474 (65 N. W. 63), a murder case, a witness testified that, upon the day of her murder, she asked deceased to go with her to dinner, and received the reply that she could not because “ she had a business engagement with Mr. Hayward.” Of this the supreme court said:

“ This statement forms a connected part of the evidence, and tends to characterize her subsequent acts and her departure on the fatal ride soon after she made the statement. This statement was not mere self-serving hearsay evidence, but a verbal act, just as relevant as would be evidence that prior to her departure she put on her cloak or hat. ”

In State v. Howard, 32 Vt. 380, a witness for the prosecution was asked the purpose of herself and her deceased sister in leaving home, and testified:

“ I had some talk of going on a visit before I knew she was going. I and she supposed her to be pregnant, and she left Sutton to get an abortion procured, as was understood between us at the time we left.”

Of this testimony, Chief Justice Redfield, speaking for the court, said:

“The declarations of Olive Ashe as to the purpose of the journey in going to the respondent’s were properly admitted as part of the res gestee. The mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act of going and were admissible as part of the act.”

In State v. Dickinson, 41 Wis. 299, a witness was permitted to testify to declarations of the deceased to the effect that she understood or had found out that she was in a family way, had been to see defendant about it, had made an arrangement or bargain with defendant to perform an operation upon her, and was to visit him at a time stated for the purpose of an abortion. It was held:

“ Upon the authorities, her intent or purpose in going there might be shown by her declarations then made or previously made; because such declarations became a part of the res gestee. For it is evident the declarations were connected with the act of her going to the defendant; were expressive of the character, motive, or object of her conduct; that they are to be regarded 5 as verbal acts indicating a present purpose or intention, and therefore are admitted in proof like any other material facts.’ ”

In Commonwealth v. Fetch, 132 Mass. 22, the statement of facts contains the following: The defendant called one Hughes as a witness and offered to prove by her that, in the month of June next preceding the time of the alleged offense, Mary (the deceased) told her that she was pregnant by one Edward Titcomb, and that if Tit-comb did not perform an operation to procure a miscarriage, or get some one to do so, she should perform the operation herself with a lead pencil. It appeared that said declarations neither accompanied nor were explanatory of any act then done by her. The testimony was excluded. The court, affirming the ruling, said that the declaration accompanied no act, gave character to no transaction.

“ There existed no one of the circumstances which sometimes in law are deemed a sanction equivalent to the ordinary sanction of an oath. It is mere recital.”.

In Commonwealth v. Trefethen, 157 Mass. 180 (31 N. E. 961, 24 L. R. A. 235), the defendant was charged with murder by drowning. He offered to prove in his defense that deceased had stated on the day before her death by drowning that she was five months pregnant with child and had come to consult the witness (a medium) as to what to do, adding, during the interview, that she was going to drown herself. The testimony was excluded. Overruling the trial judge, it is said:

“On principle, therefore, we think it clear that, when evidence of the declarations of a person is introduced solely for the purpose of showing what the state of mind or intention of that person was at the time the declarations were made, the declarations are to be regarded as acts from which the state of mind or intention may be inferred in the same manner as from the appearance of the person or his behavior, or his actions generally. In the present case the declaration, evidence of which was offered, contained nothing in the nature of narrative, and was significant only as showing the state of mind or intention of the deceased.”

The decision in Commonwealth v. Fetch is commented on in part as follows:

“ The decision of the court that no question of pedigree was involved in the case, and that for the purpose of proving that Titcomb was the father of the child the evidence was hearsay and inadmissible, is undoubtedly correct. But the counsel for the defendant in that case also contended that evidence of this declaration was admissible to show an intention in the mind of the deceased to perform the operation, and that this was material in connection with the evidence that the operation was one which she might have performed. There are some passages in the latter part of the opinion which perhaps tend to show that this argument did not wholly escape the mind of the justice who wrote it, but this particular aspect of the evidence is certainly not carefully considered, and no cases are cited, and the whole discussion in the opinion is such that this point in the determination of the case might not have received the attention it deserved. Upon a re-examination of the question, we are of opinion that, under the circumstances shown in Commonwealth v. Fetch, a part of the evidence should have been admitted for the purpose of showing the intention in the mind of the deceased, and that to this extent that decision must be overruled.”

See, also, Hunter v. State, 40 N. J. Law, 495; 1 Greenleaf on Evidence (15th Ed.), § 108, and notes; Inness v. Railroad Co., 168 Mass. 433 (47 N. E. 193); State v. Power, 24 Wash. 34 (63 Pac. 1112, 63 L. R. A. 902); Mutual Life Ins. Co. v. Hillmon, 145 U S. 285 (12 Sup. Ct. 909).

It will be noticed that in some of the opinions referred to the term res gestee, in others the term verbal act, and perhaps in others other terms are employed as indicative of a rule, or an exception to a rule, permitting the introduction of the testimony. Nevertheless, it is clear that in most of the cases cited, the testimony was regarded not as hearsay and admitted under some exception to the rule which excludes hearsay testimony, but as original evidence. Original evidence of the condition of deceased as she supposed it to be, of her intention and of the purpose of her visits to respondent, was furnished by testimony of her declarations. Standing alone, this testimony did not tend to prove’ the guilt of respondent. But it was most convincing evidence, if the narrator was believed, that deceased proposed to be the willing participant in a criminal abortion, if it was found to be necessary. Her purpose, intention, and willingness, in connection with her acts in calling upon respondent, were clearly material. That the declarations were made upon the occasion of her first, and a day before her second, visit is a fact to be considered, but, as it appears that no examination of her person was made at the first visit, and it is admitted that an appointment was made for a second visit, it must be assumed that her supposed condition and her purpose remained the same. But the statements of deceased after her first visit were not declarations but were recitals and conclusions from statements made by respondent to deceased and by her repeated to the witness who repeated them to the jury. It is said in the brief for the people that this testimony was admissible as part of the res gestee. The ruling admitting the testimony of the declarations of the de. ceased as to her condition and purpose. is sustained, not upon the ground that those declarations were part of the res gestee, although it may be entirely proper to so designate them, but because they were original evidence of material facts. The testimony now being considered is clearly hearsay. As hearsay it is accompanied by none of the assurances usually supposed to accompany declarations made in expectancy of death or during or immediately before or after the vital act inquired about, as an affray or bodily injury. The general rule excludes it. People v. Aikin, 66 Mich. 460 (33 N. W. 821, 11 Am. St. Rep. 512); People v. Davis, 56 N. Y. 95. The conclusion reached is that the court below was in error in admitting testimony of the statements made by deceased after she left the office of respondent upon her first visit there.

Assuming that the witness Cora James learned, as she testified she did, that the inquiries made of her by deceased were made on her own account, her testimony concerning the inquiries was properly admitted for reasons already given. It was proper to show by this witness that, in connection with her other statements, the deceased desired to be referred to a doctor and was referred by her to respondent.

But why she did so, though perhaps the reason is infer-able, she should not have been permitted to state. Her opinions and what she had heard concerning the respondent were not competent. I do not find that the specific objection was made or that the court was asked particularly to strike out the objectionable testimony.

The testimony of the witness Messenger that she saw deceased at respondent’s office on the afternoon of August 27th was of course competent. The testimony that deceased told her she had an appointment with respondent is made unimportant by respondent’s admission that she did have an appointment. Her testimony concerning what deceased said the respondent had said was hearsay and should not have been received. If the admission of hearsay testimony was the only error made to appear, I should seriously consider whether, in view of all the testimony, it could be said that the error was without prejudice. But, as will be pointed out, there is other error requiring a reversal.

2. The testimony admissible under the foregoing rulings, when considered with all of the testimony in the case, was competent to prove thq corpus delicti. It tended to establish the nature of the act which one of the actors desired to have performed and the other is charged with, having committed.

3. It is possible that I do not understand the significance of the testimony of the witness McDonnell herein-before set out. He was called in rebuttal. Respondent had testified that he made no statement when arrested, to which fact the attention of the prosecuting attorney was directed, who made the reply, “ In a way, and I want to show that he has not admitted it as it was.” The complaint made about it in the brief for respondent is that respondent gave as a reason for not making a statement the fact that he had not been permitted by the police to see his attorney, in whose absence he declined to talk, and that testimony of one of his attorneys, who was produced as a witness both before and after the witness McDonnell gave his testimony, in contradiction of McDonnell, was excluded ; and it is said that if McDonnell’s testimony was received, as it was, testimony contradicting it should have been received. If what the prosecuting attorney meant by his rejoinder was that respondent refused to make any statement by advice of, and not in the enforced absence of, his attorney, it would seem that either McDonnell’s testimony should have been refused or that the testimony of respondent’s attorney should have been received. But I do not find that objection was made when the prosecuting attorney asked respondent, in cross-examination, about the opportunity given him to make, and his refusal to make, a statement.

4, 5, 6. The late Mr. Justice Campbell, delivering the opinion of this court in Evans v. People, 12 Mich. 27, 34, used the following language, stating two important principles of the law of evidence, applicable in the case at bar:

“ It is not always easy to determine the propriety of receiving or rejecting testimony concerning matters involving, apparently to a greater or less extent, medical or other scientific investigation. There are many cases where it is difficult to determine whether the facts to be examined are to be considered beyond the range of ordinary intelligence. And the decisions are by no means clear or satisfactory upon the distinctions. The principles on which the authorities rest are more consistent than the attempts to apply them.

“The primary rule, concerning all evidence, is, that personal knowledge of such facts as a court or jury may be called upon to consider, should be required of all witnesses, where it is attainable.

“ It is also an elementary rule that, where the court or jury can make their own deductions, they shall not be made by those testifying. In all cases, therefore, where it is possible to inform the jury fully enough to enable them to dispense with the opinions or deductions of witnesses from things noticed by themselves, or described by others, such opinions or deductions should not usually be received. But experience has shown that many cases exist, in which it is impossible, by any description, however graphic, to explain things so as to enable any one but the witness himself to see or comprehend them, as they would have been seen or comprehended could the jury have occupied his position of observation. In such cases, the witness must give his own impressions and conclusions, or his narrative is useless; adding, however, as full explanations as the nature of the case will admit, so that his capacity and truthfulness may be tested as far as practicable.”

After giving some examples, he adds:

“In all these cases the witness is allowed to testify to a result, because, without such evidence, the jury cannot be supposed able to arrive at a knowledge of it, and therefore such aid is indispensable.”

One of the principles enunciated is that the testimony of such witnesses is dispensed with whenever the point is reached at which the tribunal is being told that which it is itself entirely equipped to determine without the witness’ aid. 3 Wigmore on Evidence, § 1918. In the same opinion Mr. Justice Campbell states the rule, well enough known, but not always observed, that, when a scientific witness testifies to matters within the comprehension of ordinary witnesses, he stands on the same footing with them as to all such testimony, and, as to such matters, can only give his opinions where any other observer might do so. It does not require argument to prove that no medical witness called in the case at bar should have been asked for or permitted to give the opinion that a criminal operation had been performed. To say that in this case any operation must have been criminal does not meet the objection. It was the duty and province of the court, not that of expert witnesses, to advise the jury concerning the facts necessary to establish a crime.

The second hypothetical question, set out in the statement of facts herein, called upon the witness to state who, in his opinion, committed the criminal act, and, by necessary inference, from all data supplied by the question itself, called upon the witness to state, in substance and effect, that respondent was guilty as charged. The court interposed and the question was not answered. But the hypothetical question first above set out is little less objectionable. Undoubtedly, it was competent to include in the premises for an expert opinion the fact that the girl supposed herself to be pregnant, having passed two monthly periods, because that fact, like a statement of it made by the girl as patient to the witness as her physician, might properly be considered. So all the evidence afforded by observation of the body of the deceased, considered with respect to the probable time when she died and the immersion of the body in water, should have been included in the premises stated. But how is it possible for a scientific opinion in the case to be aided by the facts that bricks were placed in the sacks with portions of the body, that deceased had taken cotton root, possessed a catheter, had made an appointment with respondent about an operation upon terms stated, that the body had been carried in an automobile from respondent’s office to Ecorse creek, that her body was dismembered in the office of the physician consulted by her ? It was to data and observations impossible to lay before the jury and be comprehended by them, and such connecting and incidental data as afforded a basis for scientific opinion and deduction, that the experts should have been confined. The objections to the questions here stated were made by counsel for respondent and were overruled. That the error was prejudicial to respondent must be conceded. These witnesses, whose opinions were rested in large part upon nonscientific data which the jury was perfectly able to comprehend and estimate, whose answers to the questions could not well have been other than those which were expected and received, were particularly accredited by the court in the .charge. I do not mean to intimate that in a proper case the opinion of a witness may not be based upon all of the testimony, when it is undisputed, nor that it is impossible to conceive of a state of facts used as the basis for opinion, one or more of which may be untrue or not proven, and the opinion still have value. I assume that the form of question used in this case suggested the instruction that, although some facts stated therein were regarded as not established, the opinion might nevertheless have value. But I cannot conceive that the value of a scientific opinion may properly be determined by a jury as they find the data upon which the opinion is based material or not material to the conclusion expressed by the witness.

Portions of the charge of the court commendatory of the medical profession have been set out. Such remarks are always made by the trial judge at the risk of consequences not intended. I have already called attention to the fact that in this case the medical witnesses were called upon to give opinions based upon improper premises. As the case stood when the charge was delivered, I think what was said about the medical gentlemen, however much it may have been deserved, was calculated to prejudice the respondent, because the case for the people was in substance contained in the questions asked medical witnesses.

7. I doubt if the jury, listening to the entire charge, received the wrong impression from that portion of it which refers to the presumed innocence of the accused.

8. The record affords abundant evidence of a spirited contest df counsel and of zeal on the part of the prosecution which was not always tempered with discretion. The respondent in a criminal case, who offers himself as a witness in his own behalf, may be asked upon his cross-examination to answer any question calling for material testimony which in the case of any other witness would be legitimate cross-examination. People v. Dupounce, 133 Mich. 1 (94 N. W. 388, 103 Am. St. Rep. 435, 2 Am. & Eng. Ann. Cas. 246).

The statement of the prosecuting attorney that he could show that respondent had continued the practice of causing abortions to the very hour of his examination, and that he was then in the practice, is not defensible, and in the brief for the people is not defended. It is said, however, and is true, that no motion was made to strike out the particular statement or to instruct the jury not to consider it. But the principal complaint made in respondent’s brief is that by the conduct df the prosecuting attorney and the attitude of the court, indicated in part by the excerpts from the record hereinbefore set out, respondent was placed at disadvantage and the defense made for him was discredited. The precise condition is not likely to arise again, and, as the case must go down for a new trial, the assignments of error last referred to and others based upon the charge and refusals to charge are not considered.

Eor the errors pointed out, this court is required to reverse the judgment of the trial court, set aside the conviction of respondent, and award a new trial. Respondent will be surrendered to the custody of the sheriff of Wayne county.

McAlvay, Blair, Stone, and Bird, JJ., concurred.