Lomax v. State
| Decision Date | 13 April 1970 |
| Docket Number | No. 5478,5478 |
| Citation | 452 S.W.2d 646,248 Ark. 534 |
| Parties | Dorothy Evelyn LOMAX, Appellant, v. The STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Harkness, Friedman & Kusin, Texarkana, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Mike Wilson, Asst. Attys. Gen., Little Rock, for appellee.
Appellant was charged by information with the crime of murder in the first degree. A jury returned a verdict of guilty of voluntary manslaughter and assessed the appellant's punishment at seven years in the penitentiary. From the judgment upon that verdict comes this appeal. Although sixteen points of error are assigned for reversal, those that are argued can be grouped into three basic issues.
The name of the victim's treating physician was not included among the witnesses endorsed on the information. The listing of the State's witnesses was in response to appellant's request. The attorney for the appellant was apprised, however, by the prosecuting attorney that the State intended to call this physician as a witness and that his identity had not as yet been determined. On the morning of the trial the State named the treating physician as a witness, in addition to those listed on the information. Appellant thereupon moved for a continuance based upon surprise. Appellant assigns as error the denial of this motion. We do not agree.
Appellant relies upon Ark.Stat.Ann. § 43--1004 (Repl.1964) which requires upon an indictment the endorsement of the names of witnesses who appear before a grand jury. Assuming, without deciding, that this statute is applicable to an information, we have said that this requirement is merely directory and not mandatory. Baker v. State, 215 Ark. 851, 223 S.W.2d 809 (1949); Thomas v. State, 161 Ark. 644, 257 S.W. 376 (1924); Taylor v. State, 186 Ark. 162, 52 S.W.2d 961 (1932); Steel v. State (Feb. 10, 1969) 436 S.W.2d 800. The failure by the State to supply the defendant with the names of its witnesses 'does not affect the validity of the trial unless the accused can show that he has been in some way misled to his prejudice and had no opportunity to meet the testimony given by the witness.' Thomas v. State, supra. In the case at bar, when appellant made a request for the names of the State's witnesses prior to trial she was made aware by the prosecuting attorney that the treating physician, whose name was then unknown, would be called as a witness for the prosecution. Thus, the appellant had an equal 'opportunity' with the State to determine prior to trial the identity of the treating physician and thereby 'to meet (his) testimony' if necessary. It cannot be said, therefore, that appellant was misled to her prejudice or surprise. Norton v. State, 237 Ark. 783, 376 S.W.2d 267 (1964). Nor can we agree with appellant that the trial court abused its discretion in refusing to grant appellant's motion for a continuance based upon the doctor being a surprise witness. Jackson v. State, 245 Ark. 331, 432 S.W.2d 876 (1868). In fact, the trial court offered to continue the trial of the case for a reasonable time to permit appellant to secure and present evidence to contradict the doctor's testimony. The offer was declined.
Appellant next argues that the trial court erred in instructing the jury to disregard a statement made by the decedent to his treating physician in which statement the victim admitted provoking the incident that led to his death. The appellant argues that this statement was a dying declaration and, therefore, admissible as an exception to the hearsay rule. The victim of the alleged offense lived about a month before he succumbed to a gunshot wound. The physician testified that the victim was not dying at the time the statement was made, nor did it appear that he was under the impression that his death was imminent. Apprehension of immediate death is, of course, a condition of the admissibility of a dying declaration. We agree that the trial court was warranted in telling the jury that the appellant had not demonstrated that the deceased's statement was made in the belief of impending death and without hope of recovery. Comer v. State, 212 Ark. 66, 204 S.W.2d 875 (1948); Wigmore, Vol. V, § 1451. Yet another answer to this contention is the absence of any objection to this ruling by the trial court. We have consistently required that an objection must be made, an exception saved and the point preserved or carried forward in a motion for a new trial. Keese and Pilgreen v. State, 223 Ark. 261, 265 S.W.2d 542 (1954); Randall v. State, 239 Ark. 312, 389 S.W.2d 229 (1965); Parrot v. State (April 14, 1969) 439 S.W.2d 924.
Finally, it is urged that error was committed when the trial court ordered one of appellant's witnesses to be removed to a hospital for a blood test and thereafter permitted the doctor who administered this test to testify as to the witness's state of intoxication while she was on the witness stand.
Appellant called Valdean Hamilton, who was present with appellant on the night of the shooting, as a witness. On cross-examination she was asked whether she had been drinking on the day of the trial. She answered that she had not. At that point the prosecuting attorney stated to the court: 'Your honor, at this time, I would like for an officer to check this young lady.' The court then asked the jury to rest for a moment and removed the proceedings into chambers. After an in-chambers proceeding in which the witness repeated her denial of drinking during the day and two officers of the court testified that the odor of alcohol about the witness was noticeable to them during the trial, the court ordered that she be taken to the hospital for a blood test. Two reasons motivated this order: first, as a matter of possible impeachment and, second, as a possible basis for contempt of court. It is undisputed that the witness had drunk rather heavily the night before. After the tests were made, the examining doctor was permitted to testify as a rebuttal witness for the State. On direct examination he stated that her blood alcohol content was .056 per cent per weight which would indicate imbibing of alcohol within the past few hours. He further testified that this percentage constituted On cross-examination he stated, with reference to this percentage, that: ...
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