People v. Lewis

293 N.W. 907, 294 Mich. 684, 1940 Mich. LEXIS 810

• Court: Michigan Supreme Court
• Decided: October 7, 1940
• Docket: Docket No. 117, Calendar No. 40,808.
• Status: Published

Opinions

I find reversible error in admitting the hospital record without calling the maker thereof.

In a criminal case the accused has a right to be confronted by the witnesses against him. Constitution of Michigan (1908), art. 2, § 19. See People v. Lambert, 5 Mich. 349 (72 Am. Dec. 49); People v. Sligh, 48 Mich. 54; People v. Dow, 64 Mich. 717 (8 Am. St. Rep. 873). This accords right of questioning.

The hospital record was not made by the examining physician but by a nurse in the admitting room and was produced in court by the record clerk of the hospital who testified:

"The records were not made under my supervision nor was I there when they were made out; they weren't written by Dr. Kamish."

As said by the prosecuting attorney in his brief the exhibit corroborated the testimony of the complaining witness.

The record was inadmissible and highly prejudicial.

The prosecution claimed that defendant was practicing medicine in treating a pregnant woman and in its statement of evidence of former treatment the hospital record was damaging.

Act No. 15, Pub. Acts 1935, amending 3 Comp. Laws 1929, § 14207 (Comp. Laws Supp. 1940, § 14207, Stat. Ann. § 27.902), relative to entries and writings made in the usual course of business, does not apply to criminal cases.

The conviction is reversed, and a new trial granted.

SHARPE, CHANDLER and NORTH, JJ., concurred with WIEST, J. The late Justice POTTER took no part in this decision.