State v. Carter

• Citation: 46 So.2d 897,217 La. 547
• Decision Date: 24 April 1950
• Docket Number: No. 39726,39726
• Parties: STATE v. CARTER.
• Court: Louisiana Supreme Court

Page 897

46 So.2d 897

217 La. 547

STATE v. CARTER.

No. 39726.

Supreme Court of Louisiana.

April 24, 1950.

Rehearing Denied May 29, 1950.

M. E. Culligan, Jr., New Orleans, for appellant.

Bolivar E. Kemp, Jr., Atty. General, M. E. Culligan, Asst. Atty. General, Herve Racivitch, District Atty., Robert E. LeCorgne, Jr., Asst. District Atty., New Orleans, for appellee.

HAWTHORNE, Justice.

Defendant, charged in a bill of indictment with the crime of murder, was found guilty of manslaughter and sentenced to serve a term at hard labor in the state penitentiary. From this conviction and sentence he has appealed.

During the course of the trial the defense called Dr. E. H. Maurer, a graduate of the Tulane University School of Medicine, who had been practicing his profession at the time of the trial for a period in excess of 26 years. During this period of time he was associated with the Departments of Obstetrics and Gynecology of the Tulane School of Medicine for three years; with the Department of Surgery, Louisiana State University School of Medicine for four years, and with the Department of Orthopedics, School of Medicine, for 14 years. His medical studies at Tulane included a course in pathology. This doctor testified that he was a general practitioner and was not a specialist in any particular field of medicine.

During the course of his examination he was asked the following question by counsel for the defendant:

'Q. Doctor, if an autopsy revealed there was an acute right cardiac dilatation, contusions, discoloration around the fold in neck and base of skull from ear to ear, would that, could that be from a disease, such as heart trouble?'

Counsel for the State objected to the question on the ground that the doctor had qualified as a general practitioner and not as a heart specialist. The court sustained the objection, and the witness was not permitted to answer the question. Counsel for defendant thereupon reserved a bill of exception.

The trial judge informs us in one of his per curiams that the cause of death was an issue throughout the case, the State contending that the deceased died as a result of strangulation at the hands of the accused, and the defense contending that death resulted from natural causes. We are further informed of this by the State's brief, from which we quote: 'As the entire record will show, the cause of death was an issue throughout and was actually the mainstay of the defense. That is that the deceased died of natural causes.'

Under the issues as thus presented, the sole question for our consideration is whether the trial judge incorrectly sustained the objection on the ground that the witness was not qualified to answer the question, to the prejudice of the accused.

Article 464 of the Code of Criminal Procedure provides that in all questions involving knowledge obtained by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony. Under Article 466 the test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and, before any witness can give evidence as an expert, his competency so to testify must have been established to the satisfaction of the court.

Under the authority of the latter article and the jurisprudence of this court, it is well settled that it is within the province of the trial judge to decide whether witnesses offered as experts are entitled to be heard in that capacity, and his ruling will not be disturbed where nothing appears to show error. Marr, Criminal Jurisprudence of Louisiana (2d ed.), sec. 581, p. 901. See State v. Smith, 106 La. 33, 30 So. 248; State v. Mathis, 106 La. 263, 30 So. 834.

In the instant case, however, we are of the opinion that the trial judge has abused his discretion, and that his refusal to permit the witness to answer the question propounded was highly prejudicial to the rights of the accused and constituted reversible error.

The rule applicable here is stated in 2 Wigmore on Evidence (3d ed.), sec. 569, p. 665, as follows:

'The chief question that here occurs is whether a general practitioner may testify on matters of a particular department of the science wherein specialists may presumably be had. Here the Courts seem not to have taken a sufficiently firm stand against the narrow objections frequently raised. It is not that the rulings themselves are illiberal, but that narrow doctrines are not repudiated with sufficient positiveness. The liberal doctrine should be insisted on that the law does not require the best possibly kind of a witness,...