Ferrier v. State

Thompson, J., delivered the opinion of the Court. Richard R. Ferrier, the appellant, appeals from a conviction for assault and battery in a jury trial in the Circuit Court for Montgomery County, Judge John P. Moore presiding. Ferrier ⁵⁵⁵ was sentenced to a term of eighteen months in the Maryland House of Correction. On July 18, 1967, about six months after his sentencing, the appellant filed a petition under the Uniform Post Conviction Procedure Act alleging, among other things, that he had been denied the right to note a timely appeal of his conviction.

A hearing was held before Judge Joseph M. Mathias on December 14, 1967, and on the 26th of December, 1967 pursuant to the consent of counsel for both the appellant and the state, Judge Mathias granted the appellant a delayed appeal after having found that his attempt to appeal had been delayed by circumstances beyond his control. Ferrier’s sole contention on appeal is that the lower court committed reversible error by admitting into evidence copies of the hospital records of the victim which contained recitals not pathologically germane and irrelevant to the proper diagnosis or treatment of the victim's condition. There was evidence that on January 2, 1967 about 3 :30 in the morning Raymond E. Branch was at liis home in Silver Spring, Maryland with two friends who shared the residence with him. They had just returned from a New Year’s party and Branch was having a drink with Dallas Keith while the third man, Don Turner, was asleep in a chair.

At this time the Ferrier brothers, Richard, Clyde, and George, together with two other men arrived, Branch thought, for the purpose of returning clothing that they had borrowed earlier in the evening from Don Turner. The victim testified that when he answered the front door the appellant hit him in the face and that then, together with the two other Ferrier brothers, severely beat him. The next morning about 10 or 11 Branch went to the hospital where he was treated for his injuries and was discharged about 4 P.M. the same day. Branch had known the Ferrier brothers for approximately eight months and was more or less friendly with them.

Branch, however, had had a fight a week earlier with Clyde Ferrier over a girl and at the New Year’s party the appellant had made reference to Branch’s fight with Clyde. Dallas Keith corroborated Branch’s testimony. The appellant, claiming self defense, testified that when they came to the front door the victim opened the door and began hitting them with a rifle butt, and that the ⁵⁵⁶ appellant and his brother, George, had wrestled the gun from him. His testimony was supported by his brothers’.

The medical doctor who first saw Branch at the hospital produced the original hospital records together with photostatic copies thereof. He testified that the records and the copies were made in the regular course of business of the hospital and further that it was the regular course of business of the hospital to make Such records and copies. The court examined the records and after deleting some pages admitted the remainder of the copies into evidence. To support his argument as to the admission of the hospital records the appellant first contends that the copies were not admissible under Md. Code, Art. 35, § 59.

The express language of the statute provides for the admission of photostatic or photographic copies if “photostated or photographed in the regular