State v. Doiron

¶1Defendant appeals from a conviction of murder and sentence of death, relying upon three bills of exception.

¶2Bill No. 1.

¶3[1] At the opening of the trial, the state placed upon the stand a witness, Dorr, to prove a confession at a certain place; defendant objected that the foundation showing that the confession was voluntary had not been laid; the. jury was taken out, and the witness examined to the satisfaction of both state and defense, as to that particular confession. The -judge then, of his own motion, and over the objection of accused, the jury still being out, called to the stand a Dr. Martin, who testified to another confession at another place about one hour before. The district attorney suggested that he had the right to conduct the case for the state, that he did not intend to use the testimony of Dr. Martin, and the latter was not examined by either counsel. .

¶4It was this action of the court which is complained of in the first bill.

¶5We can see no harm that resulted to the accused up to this point, since the jury was not present, and we know of no reason why the court could not, under such circumstances, obtain such information as it thought proper, to determine whether the evidence which the state actually proposed to place before the jury was admissible.

¶6We therefore find no reversible error under this bill.

¶7Bill No. 2.

¶8After the jury returned into court and the trial was resumed, the state made full proof of the confession, by several witnesses, for .which Dorr was' originally called. The district attorney then called the said Dr. P. R. Martin to the stand for the purpose of proving the confession about which the judge had called and interrogated this witness, and whom neither counsel had examined. Thereupon counsel for the defense objected to the testimony of Dr. Martin as to this confession, for the reason that no foundation as to its voluntary nature had been laid, and the district attorney had said he did not expect to use said confession. The bill recites:

¶9“That the trial judge then and there stated that the court ex propri motu laid the foundation for said confession, and admitted said con-' fession to be given to the jury.”

¶10[2] The objection was overruled and bill No. 2 retained.

¶11When a confession is offered and objection is made, as in this ease, it is the burden and duty of the state to show the circumstances under which it was made, State v. Johnson, 30 La. Ann. 881; State v. Davis, 34 La. Ann. 352; State v. Alexander, 109 La. 561, 33 South. 600—that is, that if was voluntary; and this must be done, when said objection is made, in the presence of the jury, in order that they may have the benefit of such circumstances to determine the weight to be given to the evidence to prove *553the confession. As before stated, we can see no reason why the trial judge cannot send the jury out, and first determine for himself'the question of the admissibility of the alleged confession, in order that, if he decides to exclude it, the jury may not be affected by any prejudicial matter preliminarily brought out. But where he does determine that it is admissible, the accused is entitled to have all the circumstances go before the jury as a preliminary matter, for they have the right to determine the weight of all evidence, and to say whether statements, alleged to have been voluntarily made, were in fact so made, and, if not, to disregard them. What is done' out of the presence of the jury in a criminal trial, is as if it had not taken place at all. Wharton’s Crim. Ev. (10th Ed.) vol. 2, pp. 1422-1425, §§ 689a, 689b.

¶12Bill No. 3.

¶13[3-5] This bill was reserved to the overruling of an objection to the testimony of a certain physician sworn as an expert on insanity by the state as to the mental condition of accused, who had pleaded insanity as a defense. The objection was that the witness had not been qualified as an expert. The court then proposed to examine the witness on the point, whereupon counsel for accused objected that the court had no right to do so, that it was the district attorney’s duty to handle the case for the state, arid that this was being done in the presence of the jury. The court then ordered the sheriff to take the jury out, and itself proceeded to examine the witness as follows:

¶14“Q. Doctor, you claim that you are not an alienist — not an authority on mental diseases?

¶15“A. No, sir; I am not.

¶16“Q. You are a practicing physician?

¶17“A. Yes, sir.

¶18“Q. Doing and performing general practice?

¶19“A. Yes, sir.

¶20“Q. As a physician, a graduate of Tulane University, a medical institution recognized under the laws of the state of Louisiana, and having passed your examination under the laws of the state of Louisiana and duly qualified as a physician, though not an alienist, not having made a specialty of it, you have a pretty' good idea of it as a general physician?

¶21“A. Yes, sir.

¶22“The court considers this witness an expert, and so rules. (Bill reserved.)”

¶23The court then had the jury brought back and allowed the witness to testify as an expert. .

¶24What we have said above in regard to testimony given out of the presence of the jury is also applicable to this bill. Besides, the examination disclosed nothing as to the witness’ knowledge or experience with mental diseases or insane persons, and the ruling was erroneous.

¶25We will add that it is the duty of the counsel for the state to present its case, and the judge should refrain from assuming the rQle of counsel, or indicating a desire to assist either side, though, as above stated, we can see no impropriety — in fact, think it entirely proper — for him to inform himself on preliminary questions, such as arose in this case; but such action forms no part of the trial proper.

¶26The ruling on this bill was erroneous.

¶27For the reasons assigned, the conviction and sentence are set aside, and this case remanded, to be proceeded with according to law.