People v. Weems

19 Mich. App. 553 (1969) 172 N.W.2d 865

PEOPLE
v.
WEEMS

Docket Nos. 5,840, 5,841.

Michigan Court of Appeals.

Decided October 27, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Alan A. May, for defendant.

Before: LESINSKI, C.J., and J.H. GILLIS and DANHOF, JJ.

PER CURIAM.

Defendant appeals his conviction of armed robbery and rape (MCLA § 750.529 [Stat Ann 1969 Cum Supp § 28.797], and MCLA § 750.520 [Stat Ann 1954 Rev § 28.788]).

The complainant, an unmarried woman, was asked on cross-examination whether she had ever engaged in sexual intercourse and whether she had a child. When she answered affirmatively, defendant attempted to ask the following question:

"Approximately how many times would you say you partook of sexual intercourse?"

The trial court ruled the question improper and defendant claims error.

On cross-examination it is permissible to discredit a witness by showing a lack of morality. People v. Cutler (1917), 197 Mich. 6; People v. Petty (1926), 234 Mich. 282. However, as stated in People v. Davis (1955), 343 Mich. 348, 366:

"``The extent to which such examination should be permitted is a matter of discretion with the trial judge, with which this Court will not interfere, unless there is a clear abuse of discretion.' Iamurri v. Saginaw City Gas Co. (1907), 148 Mich. 27, 30."

In the case at bar, the complainant testified to her lack of chastity. No showing was made of the necessity to continue the line of questioning. We do not find that the trial court's ruling constituted a clear abuse of discretion.

Defendant's second allegation of error concerns the trial court's refusal to admit into evidence Department of Health records detailing defendant's treatment for syphilis.

After complainant testified that she did not contract syphilis subsequent to the rape, defendant's wife testified that both she and her husband were being treated for syphilis at the time of the crime. The Department of Health records clerk, reading from her records, then corroborated the wife's testimony. The trial court permitted the above testimony but excluded the health records. Defendant argues that the records were necessary to establish his theory that one infected with syphilis must transmit it to another person during sexual intercourse. However, defendant has not demonstrated that the records contained additional evidence supporting his theory. Although hospital records are generally admissible,^[*] we fail to see how defendant was prejudiced by the exclusion of Department of Health records in this case.

Defendant next questions the sufficiency of the trial court's instructions to the jury. The instructions included a standard charge with respect to establishment of the elements of the crime and the defendant's participation therein beyond a reasonable doubt. It is defendant's contention, however, that there should have been more emphasis on the necessity of finding, beyond a reasonable doubt, that the defendant committed the crime. Defendant cites People v. Cismadija (1911), 167 Mich. 210, in support of his argument. There the Court found that the instructions had unfairly placed the burden of proof of innocence upon the defendant. Such is not the case at bar. An appellate court considers the entire charge in reviewing claimed errors in the instructions. People v. Thomas (1967) 7 Mich. App. 519. When read in full the charge given fairly apprised the jury of the law of the case.

Defendant's final claim of error is that the verdict was against the great weight of the evidence. We repeat what we stated in People v. Washington (1966), 4 Mich. App. 453, 456:

"``The last assignment of error reiterates an incorrect standard of proof, asserting the verdict is against the great weight of evidence. The correct standard in a criminal appeal is evidence sufficient to convince beyond a reasonable doubt.' People v. Williams (1962), 368 Mich. 494."

Reviewing the record, we find there was sufficient evidence, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt. People v. Thomas, supra.

Affirmed.

NOTES

[*] Hospital records are considered "business records" and are admissible under MCLA § 600.2146 (Stat Ann 1962 Rev § 27A.2146), and Gile v. Hudnutt (1937), 279 Mich. 358 (construing predecessor statute).