Smith v. State , 38 Ala. App. 161 ( 1955 )

CARR, Presiding Judge.

This case was originally assigned to Judge PRICE.

The members of the court found themselves in disagreement and unable to reach an unanimous conclusion as to certain controlling questions, so we certified these to the Supreme Court.

In the opinion now prepared by Judge PRICE, there appears the response of the Supreme Court to our abstract questions, and also a delineation of additional testimony given by Dr. J. B. Wiley. These facts are sufficient to form the basis for my views.

The Supreme Court held in effect, 82 So.2d 296,¹ that a physician who is qualified and licensed under the laws of our State to engage in the general practice of medicine is qualified as an expert to testify as to the sanity or insanity of a person. However, “ * * * in order for him to be qualified to express an opinion as an expert based only on personal observation or examination, such observation or examination must have been with reference to the person’s mental status.”

In the case at bar the critical question for decision is whether or not the evidence tends or establishes an inference that Dr. Wiley did observe or examine the defendant with reference to her mental status.

We have a long line of authorities which hold that the admission of evidence without sufficient foundation for its admissibility, if error when it is introduced, is without injury if subsequently in the trial proceedings the essential and required connecting proof is established.

This rule has been applied to expert testimony. Traffenstedt v. State, 34 Ala.App. 273, 38 So.2d 619; Snow v. Allen, 227 Ala. 615, 151 So. 468.

Without dispute in the evidence in the instant case the appellant was highly nervous and had been for some time.

Prior to the occasion of the homicide Dr. Wiley had been treating the defendant professionally for seven or eight years. He observed her in this relationship on an average of two or three times a year and saw her non-professionally at other times. He attributed her nervousness to “chronic anemia and low blood pressure.” On the basis of this observation and examination, he testified that she was sane.

I am unable to escape the conclusion that over this long period of time he examined and observed both the physical and mental status of the defendant. Certainly, a fair inference arises from the evidence that he did. If he did not, I am unable to see how he could have arrived at the conclusion that her nervous condition was not attributable to a mental status, but rather to a physical condition.

Judge HARWOOD concurs in the conclusion reached by the writer. Therefore this will become the majority opinion of this court.

It is ordered that the judgment below be affirmed.

Affirmed.

1 . 263 Ala. 1.