State v. Nicolosi

• Decision Date: 30 June 1955
• Docket Number: No. 42335,42335
• Citation: 228 La. 65,81 So.2d 771
• Parties: STATE of Louisiana v. Anthony R. NICOLOSI.
• Court: Louisiana Supreme Court

Page 771

81 So.2d 771

228 La. 65

STATE of Louisiana v. Anthony R. NICOLOSI.

No. 42335.

Supreme Court of Louisiana.

June 30, 1955.

Sam J. D'Amico, Baton Rouge, for appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Jack P. F. Gremillion, First Asst. Dist. Atty., Scallan E. Walsh, Second Asst. Dist. Atty., Baton Rouge, for appellee.

HAWTHORNE, Justice.

Defendant, Anthony R. Nicolosi, charged with the crime of unlawful possession of narcotic drugs, was tried, judged guilty of attempted unlawful possession of narcotic drugs, and sentenced to serve five years in the state penitentiary at hard labor. He has appealed.

Bills of Exception Nos. 1, 2, and 3 relate to objections made by the defendant to testimony of Mr. Ray Herd, a witness called by the State as an expert. The testimony to which these objections were made concerned the identification as marihuana of particles found in the clothing of the defendant.

Under Article 466 of the Code of Criminal Procedure, the test of the competency of an expert is his knowledge of the subject on which he is asked to express an opinion, and, before any witness can give evidence as an expert, his competency to testify must have been established to the satisfaction of the court. Under this article 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 no error appears. State v. Carter, 217 La. 547, 46 So.2d 897.

In the instant case the trial judge found that the witness was fully competent to give the expert testimony to which defendant objected, and the record completely justifies the trial judge's finding.

Bill of Exception No. 4 was also reserved in connection with the testimony of Mr. Herd, the State's expert witness. During his testimony Mr. Herd was permitted over the objection of defendant to read a paragraph from a pamphlet called 'Marihuana--Its Identification', published by the United States Treasury Department, Bureau of Narcotics. Counsel for defendant objected to the reading from this publication on the ground that by doing so the witness was permitted to give the opinion of some other person who had not been sworn to testify.

In the instant case it is not contended that the book from which the paragraph was read was not trustworthy or not an authority on the subject. Evidently the testimony given by the expert was based in part on this scientific treatise, as the judge informs us in his per curiam that he permitted it to be read in corroboration and support of the witness' testimony. If this is so, we know of no valid reason why the court itself should not have the benefit of the except from the scientific treatise, for it would be inconsistent to receive in evidence the opinion of an expert witness but exclude the scientific article on which he partially bases this opinion. See Art. 464, Code Cr.Proc.; Wigmore, Evidence, v. 6, p. 17 (1940).

Moreover, in the instant case the trial judge has incorporated in his per curiam the paragraph which the witness read, and there is nothing in it that prejudices the defendant in any way so as to entitle him to a new trial.

Bills Nos. 5, 6, 7, and 9 were reserved to the overruling of objections by the defendant to certain testimony of a State's witness, Charles Fisher. Fisher, a peddler of narcotics, was asked numerous questions with reference to conversations which he had had with the defendant, or with others in the presence of the defendant, on occasions when the defendant and the others purchased or arranged to purchase marihuana from Fisher. All or these events testified to by Fisher occurred prior to the date of the offense charged in the bill of information.

The trial judge states in his per curiams to these bills that he admitted this evidence showing the commission of similar offenses by the defendant for the purpose of establishing guilty knowledge and intent.

Possession without knowledge of such possession is not possion in the legal sense of that word. See 33 Words and Phrases, Possession, pp. 73, 88. Knowledge is therefore an essential ingredient of the crime of possession of narcotics, and consequently the ruling of the trial judge was correct under Article 446 of the Code of Criminal Procedure, which reads:

'When Knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offense for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.'

Bill No. 8 was reserved to the refusal of the trial judge to grant the request of defendant's counsel for a mistrial. According to the bill, State's witness Charles Fisher was asked the following question: 'What did they ask you to do?' Defendant's counsel objected to the question and requested the court to limit the examination because the State had neither alleged nor proved a conspiracy. In passing on the objection the judge stated: '[The witness] Having testified that the solicitation was present at the time the solicitation was made, the objection is overruled.' Defendant's counsel then objected to the remark of the trial judge as a comment on the evidence and requested a mistrial.

Before discussing this bill we think the facts and circumstances leading to its perfection should be given. Counsel for defendant made numerous objections during the examination of Charles Fisher, and his objections were overruled. Notwithstanding these many rulings, counsel for defendant continued to interrupt the examination for the purpose of objecting, and it was counsel's persistence in continuing his objections that provoked the statement made by the judge of which he now complains.

The trial judge informs us in his per curiam that the remark was necessary to explain his ruling, and also that the jury was later charged that they were the sole and only judges of the evidence and that the court could not comment on what had been proven or not proven during the trial.

There are cases in our jurisprudence, too numerous to require citation, which hold that the judge should not comment on the credibility of the witness or on the evidence during the course of the trial in a criminal case, that he should not express an opinion as to what facts have been proven or refuted, and that, when he does make such comments or express such an opinion, these comments and expressions are reversible error. This prohibition, found in the statutes and the Constitution of this state, applies to whatever the judge may say in the presence of the jury during the progress of the trial whether in his charge to the jury or in overruling objections made by counsel for the accused. State v. Davis, 140 La. 925, 74 So. 201; State v. Ballou, 140 La. 1086, 74 So. 562. The remarks of the trial judge in the instant case, however, do not constitute a comment either on the credibility of witness or on evidence which was adduced at the trial, and are not an opinion as to what facts have been proven or refuted.

Nevertheless, in overruling the objection the judge did repeat the testimony of a witness, and he is expressly forbidden to do so under the provision of Article 384 of the Code of Criminal Procedure that '* * * The judge shall not * * * repeat the testimony of any witness'. Thus by so doing the judge in this case committed error. The question then presented is whether the error entitles the defendant...