Talbert v. State, 49736
| Decision Date | 11 May 1977 |
| Docket Number | No. 49736,49736 |
| Citation | 347 So.2d 352 |
| Parties | Morris TALBERT v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
William O. Semmes, Grenada, for appellant.
A. F. Summer, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, SUGG and WALKER, JJ.
WALKER, Justice, for the Court:
Morris Talbert was indicted and tried in the Circuit Court of Grenada County, Mississippi, for the murder of E. W. Gant. The jury found him guilty as charged, and the court sentenced him to life imprisonment. In his appeal, he contends that evidence of his confession was improperly admitted. He contends that the state did not present proper proof of the victim's cause of death, and further argues that the evidence taken as a whole does not support the jury's verdict. He also complains of the refusal of several requested instructions. Only two of these assignments merit discussion.
On the morning of Saturday, September 20, 1975, D. H. Lemley, a route salesman for Colonial Bread, found Mr. Gant lying on the floor of his small country store. He testified:
Mr. Gant was carried to the Grenada County Hospital, where he was placed in intensive care under the supervision of Dr. D. L. Harrison, Jr. In his testimony, Dr. Harrison described Gant's injuries in detail:
There was a deep laceration of the left occipital, the back side of the scalp, the length of which was approximately four inches, and coming in a diagonal fashion across the scalp. Then, there was another laceration on the right temple area which crossed over his head, the bridge of the nose, and extended beneath the eye. These lacerations were very irregular. These were ragged and went down through all layers of the soft tissue of the acalp (sic) and face to the bony structure or bony structures of the skull, the nose, and the face and to his head.
Dr. Harrison further testified that the fixed and dilated condition of the pupil of Gant's right eye "indicated . . . that he had brain injury and increased intercranial pressure, pressure within the skull from the brain injury." From his observation of the victim, Dr. Harrison concluded that "his injuries were severe enough that I felt that death was imminent."
Because of Gant's critical condition, Dr. Harrison ordered him transferred to the Methodist Hospital in Memphis. Dr. Harrison did not see the victim after he left Grenada. Mr. Gant's son testified that his father died in Memphis the next day, Sunday, September 21 at 8:10 p. m.
Dr. Harrison testified that, based upon his observation of the victim on September 20, Mr. Gant died as a result of the massive head injury which he had described to the court. On cross-examination, Talbert's attorney asked Dr. Harrison whether there might have been some independent and intervening factor which had caused Gant's death after he left Grenada. Referring to the head injury, Dr. Harrison replied, In response to further questions, Dr. Harrison testified that he had spoken with the physicians at the Methodist Hospital and had examined their records, finding no evidence of any intervening cause of death.
Talbert vigorously argues that Dr. Harrison's testimony was not sufficient to establish the cause of death. Dr. Harrison did not see Mr. Gant from the time he left Grenada on Saturday morning until the time he died in Memphis on Sunday night. Talbert contends that Dr. Harrison's opinion is therefore based on hearsay reports from the doctors in Memphis. Finally, he contends that the best evidence rule required the state to prove the cause of death by the testimony of the doctors in Memphis who cared for Mr. Gant during the last twenty-four hours of his life.
We believe that the cause of Gant's death was adequately proved by Dr. Harrison's report of his observations on the morning of September 20. We find no direct precedent for this situation in our reported decisions, and no cases are cited to us by either Talbert or the state. However, we believe that the most reasonable rule is stated in 40 C.J.S. Homicide § 186 (1944):
When a wound from which death might ensue has been inflicted with murderous intent and has been followed by death, the burden of proof is on accused to show that death did not result from such wound, but from some other cause.
State v. Johnson, 36 Del. 341, 175 A. 669 (Ct. of Oyer & Terminer 1934); Land v. State, 156 So.2d 8 (Fla.1963), cert. denied, 377 U.S. 959, 84 S.Ct. 1635, 12 L.Ed.2d 503 (1964); Hopper v. State, 54 So.2d 165 (Fla.1951); Penton v. State, 114 So.2d 381 (Fla.App.1959); Coachman v. State, 114 So.2d 189 (Fla.App.1959). In Mississippi the burden of proof never shifts from the prosecution in a criminal case. Pittman v. State, 297 So.2d 888, 891 (Miss.1974). However, the defendant has the duty to go forward in presenting evidence to substantiate matters raised in defense. See, e. g., Alston v. State, 258 So.2d 436, 438 (Miss.1972). We hold that Talbert had the duty to go forward and present evidence from which the jury could infer an intervening cause of death.
In this case, Dr. Harrison described Gant's injuries in excruciating detail. His opinion at the time of his observations was that death was imminent because of the head injuries inflicted by this brutal beating. Mr. Gant in fact died the next evening. With this testimony, the state met its burden of proof. It had established facts from which the jury could infer beyond a reasonable doubt that Mr. Gant died from the beating inflicted upon him in the course of the robbery. Talbert introduced no evidence whatsoever to establish that any other agency could have caused Gant's death.
The best evidence rule did not require the state to present the doctors from Memphis who attended Gant at the time of his death. The best evidence rule applies only to documentary evidence. 32A C.J.S. Evidence § 782 (1964).
Nor was Dr. Harrison's opinion as to the cause of death based upon hearsay. His testimony clearly indicates that his opinion was formed by his personal observations on September 20. It is unimportant that his opinion was later confirmed by his conversations with the doctors in Memphis. He did not rely on those consultations in forming his opinion. It should also be noted that reference to these conversations was brought out by Talbert's attorney on cross-examination, and...
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