Grammer v. State , 239 Ala. 633 ( 1940 )

Justice BROWN seems to declare that it was reversible error to show that the wife of decedent, Hammett, was dead at the time of the trial. But aside from the fact that no point was made by appellant's counsel in brief or assignments on account of that ruling, it is not erroneous when we consider the fact that she was present at the time of the occurrence, and that the difficulty was directly concerning the alleged treatment of her by defendant at that time. If the State did not produce her as a witness, it was not error to account for her absence by showing her death prior to the trial.

The only questions argued on this appeal relate to the plea of insanity.

Justice BROWN seems to rely for his conclusion, that the verdict and judgment should be set aside, on the fact that much of the evidence of Dr. Kay, an expert on mental disease connected with the Bryce Hospital, was a second hand rendition of the conclusion of members of the staff of physicians of the hospital.

Aside from the fact that no objection was made to it, it appears that those conclusions were expressed in their conferences and examinations of defendant, where, in many of them, he was personally brought to make a diagnosis, and in others they were considering and discussing his symptoms. When so, the opinions expressed by the physicians have been held by this Court, in line with others, to be a part of the res gestae of their diagnosis and that of the physician testifying, since they were thus engaged in their professional service, and the expression of such opinions "were coincident business declarations," and admissible in evidence though given in the testimony of another witness. Franklin Life Ins. Co. v. Brantley, 231 Ala. 554, 165 So. 834; Taylor v. Atlantic Coast Line R. Co., 232 Ala. 378, 168 So. 181; Mutual Life Ins. Co. v. Tillman, 84 Tex. 31, 36, 19 S.W. 294, 297. The fact that the witness expressed the "unanimous opinion of the medical staff", rather than a repetition of what they said in that connection is not sufficient, in the absence of objection on that ground, to impeach such testimony of Dr. Kay as not being of much probative value. Whether he should have been required to repeat what each doctor said in substance, or to give it as Dr. Kay did, was a matter which defendant and his counsel could control by making objection or not as they should elect. They made no such objection, and therefore, it is not the province of this Court to minimize the effect of it as given by the witness.

It is also insisted that the judgment should be reversed because on cross-examination of defendant's wife, and limited to the question of insanity of defendant, she was allowed in answer to a question by the State to testify that he was convicted in Montgomery September 5, 1933, of an assault with a weapon, and sentenced to the penitentiary. Later, in that connection, it was brought out by her testimony that he cut a man named Deeton, was found guilty, and a fine and costs taxed, but not paid, and for which he was sentenced. While she said he was sent to the penitentiary, it is probable she did not know the difference between the penitentiary and hard labor for the county. She also testified that defendant and her father had a shooting affair, but neither was hit. No objection was made to this evidence. She seemed to think it tended to show his insanity, but objection was made to the Deeton incident, and the conviction in Montgomery. The grounds of objection were general. The court confined it to the issue of insanity. On that issue, we have said it "gives much latitude both to the defendant and to the state to introduce evidence of defendant's acts, declarations, and conduct, not only at the time of the offense, but prior and subsequent thereto." Anderson v. State,209 Ala. 36, 95 So. 171, 175; Birchfield v. State, 217 Ala. 225,115 So. 297; Deloney v. State, 225 Ala. 65, 142 So. 432.

The effect of the testimony of this witness was that at that time, in 1933, defendant was insane. Such affairs as he had with her father and with Deeton, for the latter of which he was convicted and fined and sentenced in default of payment, have a bearing on the issue in that connection, and on her cross-examination at least, were admissible.

Application overruled.

GARDNER, THOMAS, and KNIGHT, JJ., concur.

ANDERSON, C. J., and BOULDIN and BROWN, JJ., dissent.

BROWN, J., has expressed his views; ANDERSON, C. J., and BOULDIN, J., concur in the dissent of BROWN, J., only to the extent he holds that there should be a reversal because the wife of defendant on cross-examination was allowed to testify to the conviction of defendant in Montgomery of an assault with a weapon, and sentenced to the penitentiary. In other respects they concur in the majority opinion, by which the application for rehearing is overruled.