State v. Doiron

• Decision Date: 30 January 1922
• Docket Number: 25049
• Citation: State v. Doiron, 150 La. 550, 90 So. 920 (La. 1922)
• Court: Louisiana Supreme Court
• Parties: STATE v. DOIRON

90 So. 920

150 La. 550

STATE v. DOIRON

No. 25049

Supreme Court of Louisiana

January 30, 1922

Rehearing Denied February 27, 1922

Appeal from Eighteenth Judicial District Court Parish of Acadia William Campbell, Judge.

Willie Doiron was convicted of murder, and appeals.

Conviction set aside, and case remanded.

Gremillion & Smith, of Crowley, for appellant.

A. V Coco, Atty. Gen., and Percy T. Ogden, Dist. Atty., of Crowley (T. S. Walmsley, of New Orleans, of counsel), for the State.

DAWKINS J. O'NIELL, J. (concurring in the decree).

OPINION

DAWKINS, J.

Defendant appeals from a conviction of murder and sentence of death, relying upon three bills of exception.

Bill No. 1.

At the opening of the trial, the state placed upon the stand a witness, Dorr, to prove a confession at a certain place; defendant objected that the foundation showing that the confession was voluntary had not been laid; the jury was taken out, and the witness examined to the satisfaction of both state and defense, as to that particular confession. The judge then, of his own motion, and over the objection of accused, the jury still being out, called to the stand a Dr. Martin, who testified to another confession at another place about one hour before. The district attorney suggested that he had the right to conduct the case for the state, that he did not intend to use the testimony of Dr. Martin, and the latter was not examined by either counsel.

It was this action of the court which is complained of in the first bill.

We can see no harm that resulted to the accused up to this point, since the jury was not present, and we know of no reason why the court could not, under such circumstances, obtain such information as it thought proper, to determine whether the evidence which the state actually proposed to place before the jury was admissible.

We therefore find no reversible error under this bill.

Bill No. 2.

After the jury returned into court and the trial was resumed, the state made full proof of the confession, by several witnesses, for which Dorr was originally called. The district attorney then called the said Dr. F. R. Martin to the stand for the purpose of proving the confession about which the judge had called and interrogated this witness, and whom neither counsel had examined. Thereupon counsel for the defense objected to the testimony of Dr. Martin as to this confession, for the reason that no foundation as to its voluntary nature had been laid, and the district attorney had said he did not expect to use said confession. The bill recites:

"That the trial judge then and there stated that the court ex propri motu laid the foundation for said confession, and admitted said confession to be given to the jury."

The objection was overruled and bill No. 2 retained.

When a confession is offered and objection is made, as in this case, it is the burden and duty of the state to show the circumstances under which it was made, State v. Johnson, 30 La.Ann. 881; State v. Davis, 34 La.Ann. 351; State v. Alexander, 109 La. 557, 33 So. 600 -- that is, that it was voluntary; and this must be done, when said objection is made, in the presence of the jury, in order that they may have the benefit of such circumstances to determine the weight to be given to the evidence to prove the confession. As before stated, we can see no reason why the trial judge cannot send the jury out, and first determine for himself the question of the admissibility of the alleged confession, in order that, if he decides to exclude it, the jury may not be affected by any prejudicial matter preliminarily brought out. But where he does determine that it is admissible, the accused is entitled to have all the circumstances go before the jury as a preliminary matter, for they have the right to determine the weight of all evidence, and to say whether statements, alleged to have been voluntarily made, were in fact so made, and, if not, to disregard them. What is done out of the presence of the jury in a criminal trial, is as if it had not taken place at all. Wharton's Crim. Ev. (10th Ed.) vol. 2, pp. 1422-1425, §§ 689a, 689b.

Bill No. 3.

This bill was reserved to the overruling of an objection to the testimony of a certain physician sworn as an expert on insanity by the state as to the mental condition of accused, who had pleaded insanity as a defense. The objection was that the witness had not been qualified as an expert. The court then proposed to examine the witness on the point, whereupon counsel for accused objected that the court had no right to do so, that it was the district attorney's duty to handle the case for the state, and that this was being done in the presence of the jury. The court then ordered the sheriff to take the jury out, and itself proceeded to examine the witness as follows:

"Q. Doctor, you claim that you are not an alienist -- not an authority on mental diseases?

"A. No, sir; I am not.

"Q. You are a practicing physician?

"A. Yes, sir.

"Q. Doing and performing general practice?

"A. Yes, sir.

"Q. As a physician, a graduate of Tulane University, a medical institution recognized under the laws of the state of Louisiana, and having passed your examination under the laws of the state of Louisiana and duly qualified as a physician, though not an alienist, not...