State v. Lyons

• Decision Date: 19 December 1904
• Docket Number: 15,275
• Citation: 113 La. 959,37 So. 890
• Court: Louisiana Supreme Court
• Parties: STATE v. LYONS

37 So. 890

113 La. 959

STATE v. LYONS

No. 15,275

Supreme Court of Louisiana

December 19, 1904

Rehearing denied January 30, 1905.

Appeal from Criminal District Court, Parish of Orleans; Frank D Chretien, Judge.

Lewis W. Lyons was convicted of murder, and appeals. Affirmed.

Joseph Edward Generelly and Warren Doyle, for appellant.

Walter Guion, Atty. Gen., Chandler Clement Luzenberg, Dist. Atty Samuel A. Montgomery, Asst. Dist. Atty., and Henry Mooney Asst. Dist. Atty., for the State.

OPINION

MONROE, J.

Defendant, having been convicted of murder and sentenced to death, has appealed, and presents his case to this court by means of certain bills of exception, which will now be considered in connection with the testimony or other matter to which they refer:

Bills 1, 2, 3. A witness for the state was asked: "Where were the wounds? Where did the other bullet enter? Turn around and show the jury, so that they can see you. Did you see whether any of those bullets perforated in its course any organs of the body?" -- to which it was objected that the witness had not been qualified as an expert, that he was not a physician, that his testimony would necessarily be hearsay, and that the proof should have been made by the coroner.

The witness was the coroner's clerk, and is shown to have been present at, and to have assisted in, the autopsy. He was asked to testify only to facts, knowledge of which he had acquired by his own inspection of the body, heart, and liver of the deceased.

He needed no qualification as an expert for the purposes of such testimony, nor does it affect his competency as a witness that he was unable to say whether he could distinguish the liver of a human being from that of a calf, since a witness who sees that organ taken from a human body may identify it, though he might not, where both had previously been separated from the bodies to which they had belonged, be able to distinguish it from that of a calf. Wharton, Cr. Ev. §§ 160, 360; Underhill on Cr. Ev. § 39; State v. Smith, 22 La.Ann. 468. The objection was properly overruled.

Bill 4. The same witness was asked, "Just answer this question, yes, or no: Was anything said to him [the accused], or did he say anything to any one, in your presence?" to which it was objected "that the accused was then under arrest, and was not required to answer any questions or make reply to any accusation brought against him." The accused was not required to answer questions, but was at liberty to do so if he thought proper. State v. Jones, 47 La.Ann. 1524, 18 So. 515; State v. Lewis, 112 La. 872, 36 So. 788. The objection was properly overruled.

Bills 5, 7, and 11 show that the same witness and another were asked, in substance, "Now, state what this man said to Dr. Richard, and what Dr. Richard said to this man?" to which it was objected that Dr. Richard appeared at the bedside of the accused as a physician, questioned him as such, asked about his wounds, and whatever communications took place between them were privileged.

The accused had been taken after the homicide to the Charity Hospital, where he was under the treatment of the surgical staff of that institution. Dr. Richard was the coroner, and presumably a physician and surgeon. He was acquainted with the defendant, and visited him on a particular occasion whilst the latter was in the hospital; but it does not appear that he paid such visit, or any other, in the capacity of physician or surgeon, or that he ever occupied that relation towards the accused. The objection was therefore inapplicable to the facts, and was properly overruled. Whether it would have made any difference, under our law, if Dr. Richard had been the attending physician, need not be considered.

Bills 6 and 8 show that upon redirect examination this question, in substance, was propounded to the same witness and to another: "You were asked if you knew whether this man was under the influence of opiates or drugs. Did the man appear to be perfectly rational when he [referring to Dr. Richard] spoke to him, or did he appear to be under the influence of drugs?" -- to which it was objected that the witness was not an expert, and was not qualified as such.

The counsel for defendant having asked upon cross-examination, "Do you know whether this man was under the influence of opiates or drugs while out at the hospital?" and the witness having answered, "Well, I couldn't say; I don't know," the questions objected to were competent, in order to give him an opportunity to amplify and explain his answer so made. 1 Greenleaf (16th Ed.) § 467; Underhill on Cr. Ev. p. 209; Wharton on Cr. Ev. § 460. And the objection was properly overruled.

Bill 9. Upon redirect examination a witness for the state was asked, "There was more to it -- instead of telling you a few words, he had a conversation with you?" to which it was objected that the question was leading. It is enough to say, concerning this objection, that, if leading, the question objected to led to nothing that had not been developed on the cross-examination or that could have prejudiced the accused. And there was no reversible error in the ruling complained of.

Bill 10. Upon redirect examination a witness for the state was asked, "Did you ever intend to say that this man was insane to the extent of not knowing the difference between right and wrong?" to which it was objected that the language of the witness spoke for itself, and that the question was leading. The witness had been cross-examined at considerable length concerning interviews between him and other persons immediately after the homicide, in which he was reported to have stated that the accused was "mentally unbalanced, a monomaniac, insane, crazy," etc., and he had testified that he had, perhaps, used such language, but that the deceased, his intimate friend and partner, had just been killed; that he had just seen the defendant weltering in his own blood from a self-inflicted wound; and that he was laboring under considerable excitement, and had spoken somewhat loosely; the substance of his testimony, as given on the cross-examination, being that he had not, in the interviews mentioned, intended to convey the idea that the accused was insane in the technical sense of that term, or legally irresponsible. Thus, in concluding one of his answers, he had said: "I know the idea I intended to convey was that he was cranky, and not crazy, within the meaning of the law." The question objected to could therefore have developed nothing more, and in fact developed nothing more, than had already been elicited by defendant's counsel, and there was no reversible error in the ruling complained of.

Bill 12. A witness for the state was asked, "What did you find was the cause of his death?" to which it was objected that the witness was not an expert, and could testify only to what he had been told by the coroner, and that the proces verbal of the coroner's jury was the best evidence. No answer was given to the question as propounded, and, after the objection had been made and overruled, the following question was substituted, to wit: "* * * What did you find, as a member of the coroner's jury, as to the death of Mr. Gurley?" It will thus be observed that the witness was called on to testify not as to what, in point of fact, was the cause of the death, but as to what, as a member of the coroner's jury, he had found to have been the cause of death, and to the question as finally propounded no objection was made. Assuming, however, that the objection as previously made was intended to apply, the answer required no expert knowledge, nor was the witness obliged to rely upon information obtained from the coroner in order to answer it. The proces verbal was perhaps the best evidence of the action taken by the coroner's jury, but as the testimony brought up in connection with this bill shows that it was presented to the witness, who verified his signature thereto, and was then, without objection, read to the jury, and as it is not suggested that the answer of the witness was at variance with its contents, it is evident that the defendant could not have been prejudiced by reason of such answer. Beyond this, the cause of death does not appear to have been a serious issue in the case, the defense relied on being the insanity of the defendant. We therefore find no reversible error in the ruling complained of.

Bill 13. A witness for the defense, being cross-examined by the district attorney, was asked, "Didn't you make the statement that you had a party fence alongside of his [accused's] place or lot, and that the man worried you so much that you had to give up the lot, because of his malicious ways?" to which it was objected "that the state was attempting to contradict the witness, and must state the time, place, and person to whom the statement was made." The objection was based upon an assumption which does not appear to have been supported by the fact, since it is not suggested that the state thereafter made any attempt to contradict or impeach the witness, and was properly overruled, as premature.

The following bills, to wit, Nos. 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 31, 33, and 34, involve the same question of law, which will be considered after the facts disclosed by such bills, respectively, have been stated.

Bill 14. Dr. Dana, first assistant house surgeon, Charity Hospital, attended accused in that institution in July, 1903 immediately after the homicide, for a gunshot wound in the head. Visited him at least twice a day. Spoke to him on each occasion. Asked him how he felt -- whether he was suffering. Occasionally tested his sight by asking whether he could see with right or left eye. Accused answered questions...