Opinion
No. 36851.
June 14, 1948.
1. CRIMINAL LAW.
X-ray photographs are admissible upon authentication which satisfies court that thing or person is fairly portrayed, and question of competency of X-ray pictures is a preliminary one, addressed to discretion of trial court.
2. CRIMINAL LAW.
Where X-ray pictures of victim were taken shortly after his death in hospital to which he was taken after shooting, and it was shown that pictures were made with machine and instrument used in hospital for that purpose and were preserved as record of hospital, pictures were properly admitted.
3. CRIMINAL LAW.
Qualifications of witness to interpret X-ray pictures is normally a question for discretion of trial judge.
4. CRIMINAL LAW.
Generally, it is not necessary for one to testify as expert that he be infallible or possess highest degree of skill, but it is sufficient if he possess peculiar knowledge, wisdom, or information regarding subject matter, acquired by study, investigation, observation, experience, or practice, not possessed by ordinary laymen or inexperienced persons.
5. CRIMINAL LAW.
Evidence established that witness was qualified to interpret X-ray pictures offered in evidence in homicide prosecution, especially when considered in connection with record of defendant's admission that witness was qualified in general practice of medicine.
6. CRIMINAL LAW.
Complaint that it was not shown with sufficient certainty that witness who sought to explain X-ray pictures of victim introduced in evidence in murder of prosecution had required skill and knowledge to interpret them could not afford basis for reversal, where pictures needed no interpretation.
7. CRIMINAL LAW.
In murder prosecution, where there was no dispute about entrance, course of, and lodgment of bullet in head of victim, and entrance and course of bullet could have resulted as naturally from relative position of parties as claimed by defendant as such positions as contended for by state, admission of X-ray pictures of victim showing entrance, course of bullet, and lodgment of bullet could not constitute reversible error.
8. CRIMINAL LAW.
Fact that questions asked by district attorney in examining rebuttal witnesses could have been more specific by asking rebuttal witnesses whether defense witnesses did or did not, on occasion in question, make stated assertions, only reached to form and did not provide ground for reversal.
9. CRIMINAL LAW.
If answers given by rebuttal witnesses to questions asked by district attorney contradicted defense witnesses, they met purpose for which they were offered, and, if they supported the assertions of defense witnesses, defendant was benefited, so he could not complain thereof on appeal.
10. CRIMINAL LAW.
In murder prosecution, where rule was invoked and rebuttal witnesses offered by state to rebut testimony of defense witnesses testified on preliminary examination that they had not heard a word of evidence given on stand by any witness and trial judge found that they had heard none of the testimony, trial judge did not abuse his discretion in permitting rebuttal witnesses to testify.
APPEAL from the Circuit Court of Lincoln County.
Cohn Hobbs, of Brookhaven, for appellant.
Dr. Butler, according to his own testimony, was not a radiologist nor was he qualified to read the X-ray pictures. The admission of this testimony was highly detrimental to the rights of the appellant, not so much in the taking of the pictures, but it became highly dangerous for the appellant when an unskilled physician with no experience along this line attempted to read the pictures to the jury. While it is true the court has some discretion in the matter of admissibility of this line of testimony, we feel that in the instant case the court stepped far beyond its discretionary power in permitting testimony to be introduced that was incompetent and extremely dangerous to the rights of the appellant.
Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646; Howell v. George, 201 Miss. 783, 30 So.2d 603.
The rebuttal testimony of the witnesses Ellison, Brown and Johnson was not admissible and the motion to exclude the same should have been sustained by the court. The predicate was improperly laid for this rebuttal testimony and the rebuttal testimony was improperly presented to the court and was very determinative in the trial of this case.
Witnesses Ellison, Brown and Johnson had been in and out of the courtroom during the trial and had an opportunity, at least, to hear the testimony of the witnesses. Mr. Ellison was right next to the courtroom with the door open and the other witnesses above mentioned walked to the courtroom and stood in the door during the progress of the trial. The rule had been invoked and these witnesses should not have been in a position where they could have heard the testimony. Matters of this kind are within the discretion of the court but upon the showing made we feel that the court abused this discretion when they permitted the testimony of these three witnesses in rebuttal to testify.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The question of competency of X-ray pictures as evidence is a preliminary one addressed to the sound discretion of the court.
Howell v. George, 201 Miss. 783, 30 So.2d 603; Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646.
To testify as an expert, a witness need not be infallible or possess highest degree of skill; to testify as "expert," it is generally sufficient that the witness possesses peculiar knowledge respecting the matter involved not likely to be possessed by ordinary layman.
King v. King, 161 Miss. 51, 134 So. 827.
In order to impeach a witness by his alleged previous statements or conversations, he must, by the predicate, be apprised of the time, place, and persons present, and the particular matter as to which it is designed to impeach the witness must be distinctly presented to his or her attention. This rule was complied with in this case.
Harrison v. State, 168 Miss. 699, 152 So. 494.
The court committed no error in permitting the witnesses Ellison, Brown and Johnson to testify for the reason that the rule had been invoked and the witnesses had violated the rule. This is a matter that is left to the discretion of the court.
Sartorious v. State, 24 Miss. 202; Thomas v. State, 103 Miss. 800, 60 So. 781.
Argued orally by A.A. Cohn, for appellant, and by R.O. Arrington, for appellee.
Appellent was indicted for the murder of J.C. Wallace; was convicted of manslaughter and sentenced to the state penitentiary for fifteen years. He appeals.
The court admitted in evidence X-ray pictures showing the course of the bullet through, and the place of its lodgment in, the head of the deceased. Appellant says that was reversible error because it was not shown, with sufficient certainty, the pictures were accurately made, nor that Dr. Frank Lea Butler, who explained them to the jury, had the required skill and knowledge to interpret them. The evidence on these questions is that the victim was taken to the McComb City Hospital, McComb, Mississippi, immediately after being shot in the head with a pistol by appelllant; that the injured man lived only a short time, and that after his death the X-ray pictures in question were taken; that these were made with the machine and instruments used in that hospital for that purpose, and were preserved as a record of the hospital; that they were taken by Dr. T.L. Moore, assisted by Dr. Frank Lea Butler, both professionally connected with the hospital. In addition to the foregoing facts, it is shown that Dr. Butler graduated at the University of Tennessee Medical College in 1939; that later he served an internship at Grace Hospital, Detroit, Michigan. He then practiced medicine in the Marine Corps for three and a half years, and has engaged in the general practice of medicine since 1941. He said he had never taken a technical course of study directed particularly to making or reading X-ray pictures, but he had studied both subjects as a part of his medical course, and his practical experience therein, both as a student and in the practice of medicine, had been extensive. He said the pictures in question were accurately taken and interpreted. There was no evidence intimating the contrary. The trial judge heard the foregoing evidence preliminary to its admission before the jury. He held that the pictures were competent and that the learning and experience of Dr. Butler qualified him to interpret them. We think he was correct in both respects. "The process of X-ray photography is now well established as a method of securing a reliable representation of the bones of the human body, the location of growths and foreign substance in the body . . ." 20 Am. Jur., p. 614, Sec. 736. They are admissible "on authentication which satisfies court that thing or person is fairly portrayed, and question of competency of X-ray pictures is a preliminary one, addressed to sound discretion of the court." Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646; Howell v. George, 201 Miss. 783, 30 So.2d 603; 20 Am. Jur., p. 609, Sec. 730. We cannot say the trial court erred in admitting these pictures in evidence.
As to the qualifications of Dr. Butler to interpret the pictures, this question is also one normally addressed to the sound discretion of the trial judge. "Any person who has, by sufficient experience, acquired adequate knowledge of X-rays and their interpretation may qualify as a witness." 20 Am. Jur., p. 692, Sec. 822. It is a general rule that for one to testify as an expert it is not necessary that he be infallible or possess the highest degree of skill. It is sufficient if he possesses peculiar knowledge, wisdom, or information regarding the subject matter, acquired by study, investigation, observation, experience or practice, not possessed by the ordinary layman or inexperienced person. King v. King, 161 Miss. 51, 134 So. 827. It is evident, we think, from the foregoing evidence that Dr. Butler was well qualified to interpret these pictures, especially when considered in connection with the record admission of appellant, when Dr. Butler was offered as a witness, that he was qualified in the general practice of medicine.
There are two other reasons why the admission of these pictures and their interpretation was not error in this case. The first is that, although the pictures are not with the record and we have not seen them, we gather they plainly show the entrance, course of lodgment of this bullet. They needed no interpretation. They were before the jury and the jurors themselves could discern the foregoing facts therefrom. The other reason is there was no dispute about these matters and the entrance and of course of the bullet could have resulted at naturally from the relative positions of the parties as claimed by appellant as from such positions as contended for by the state.
It is next urged that error was committed in the method used by the district attorney in examining certain rebuttal witnesses. Shortly after the homicide occurred the district attorney, accompanied by these witnesses, went to the home of appellant, which was the scene of the crime. There and then the district attorney, in the presence of the rebuttal witnesses, asked Mrs. Lulu Wallace, the wife, and Versie Wallace, the son of appellant, certain questions and they made answers thereto, descriptive of the respective actions of appellant and J.C. Wallace, and the location and movements of an automobile occupied by J.C. Wallace when he was shot. The version of Mrs. Wallace and Versie given on the stand varied materially, according to the contention of the state, from that given by them at the scene. The district attorney laid the proper predicate for rebuttal evidence. The following are samples of questions he asked the rebuttal witnesses to which objection was made:
"Q. Now, Mr. Ellison, I will ask you to tell the court and the jury if you remember the questions asked her (Mrs. Wallace) and the answers given with reference to this shooting, at that time? A. Mrs. Wallace was asked where they were at the time this pickup came up and they said they were having breakfast and the pickup came up. She said it blew the horn and Mr. Wallace got up and went outside. She was asked how long he was outside before the shooting occurred. She said 4 or 5 minutes."
This witness was also asked, "Q. I will ask you if you remember to tell the court and jury what questions was asked Versie Wallace with reference to this shooting and with reference to the truck and what his answers were?" The witness then gave his recollection of the questions and answers.
One objection is to the form of the questions. The questions might have been more specific. The rebuttal witnesses, more properly, could have been asked if the defense witnesses did or did not, on the occasion in question, make stated assertions. But the objection reaches only form. And, while some of the questions were general, as shown above, others were in detail, as, for example, "Where did she say she went?"; "Where did she say she was at the time of the shooting?", and other specific questions which could be set out.
Appellant makes the further contention that the general answers given by the rebuttal witnesses did not contradict what Mrs. Wallace and Versie testified on the stand they did, or did not, say at the scene. We cannot see how that is reversible error. If the answers did contradict the defense witnesses, they met the purpose for which they were offered; if they supported the assertions of defense witnesses, the accused was benefitted — at least he could not complain. We do not think either contention as to this rebuttal evidence is well taken.
Appellant next says the rule was invoked and that the rebuttal witnesses heard, or could have heard, the testimony of some of the defense witnesses, and for that reason the rebuttal witnesses should not have been permitted to testify. The court conducted a preliminary examination before admitting the testimony. It appears these witnesses did not remain in the witness room; that some of them were about, or near, entrances to the court room. However, they all testified they never heard a word of evidence given on the stand by any witness, and the trial judge found "They have heard none of the testimony and not violated the rule of the court."
This is a matter largely within the discretion of the trial judge. Thomas v. State, 103 Miss. 800, 60 So. 781. We find no error here.
Affirmed.