Keeton v. State

Anderson, J., delivered the opinion of the court. Appellant was jointly indicted with W. M. Carter for the murder of her mother. There was a severance, and the trial of appellant alone, resulting in a verdict of guilty, and sentence to the penitentiary for life. From that judgment,- she prosecutes this appeal. We see no good purpose to he served by setting out the horrible and gruesome evidence going to show the murder. It was ample to sustain the verdict against appellant, and furthermore to show that the murder was committed by her alone, without the assistance of Carter or any one else. However, there was sufficient evidence, *644 if her confession is believable, to go to the jury on the theory that the murder was committed as the result of a conspiracy between appellant and Carter, the latter doing the actual hilling. The conspiracy theory is supported by her confession alone, while her separate and independent guilt was sufficiently shown by outside evidence, in connection with her confession. Appellant assigns as error the action of the court in putting her to trial when she was physicially unable to advise her counsel and testify as a witness in her own behalf, and in not inquiring into her mental condition before doing so. These two specifications of error are argued together. The facts are that appellant was brought into court for the purpose of arraignment. Her counsel objected to arraignment at the time because of her “physical condition,” stating that it would be dangerous to her health to do so, and that on account thereof they had been unable to see her, and converse with her about the case. Thereupon the court dictated into the record that on that morning he had called into conference both counsel for the state and for the appellant, and also four physicians, among whom was Dr. Jarvis, appellant’s attending physician; that these four physicians were requested, in the presence of appellant’s Gounsel, $o proceed to the hospital in which 'appellant was an inmate, and make a thorough examination of her for the purpose of ascertaining whether or not it would be safe to bring her into court at that' time for the purpose of arraignment only; that no objection was made by appellant’s counsel to this course; that the physicians accordingly made the suggested physical examination, and reported in writing to the court that they had done so carefully, and in their opinion appellant could be brought to court and arraigned without danger to her health; and that thereupon the court directed appellant to be brought into court for the purpose of arraignment only. After this statement by the court, she was arraigned, *645 and stood mute, and the court then caused a plea of not guilty to be entered. After the arraignment, appellant’s counsel offered to prove by bystanders that she. was physically unable to be arraigned. The court refused to permit this. There was no error in the procedure adopted by the court; it is supported by Lipscomb v. State, 76 Miss. 223, 25 So. 158. It was held in that case that the defendant was not entitled to postponement or continuance of his case merely because he made affidavit, and procured physicians to join him therein, stating that owing to his mental or physical condition, or both, he was unable to endure the ordeal of a trial or to properly conduct his defense; that such matters of fact could be controverted by the state; and that such an application was even more largely addressed to the sound discretion of the court than when based on other grounds. No suggestion was made to the court that appellant was incapable of arraignment and trial because she was insane. It was upon her physicial condition alone that the court was called upon to act. After the arraignment, appellant’s' counsel withdrew her application for continuance, and made a motion for severance, which was granted. Motion was then made for a special venire, which was sustained. If it had been suggested, or appeared to the court, that appellant might be insane, it was the duty of the court to inquire into and determine whether that was true or not, and, if true, to delay the trial until her sanity was regained. Hawie v. State, 125 Miss. 589, 88 So. 167. But there is nothing in the record that shows or tends to show that at that time appellant was insane, or that her main defense would be insanity at the time of the homicide. In Davis v. State, 151 Miss. 883, 119 So. 805, the court held that the defendant should have presented to the court the affidavit of witnesses to prove his present insanity or inability to conduct a rational defense; that a mere motion of de *646 fendant’s counsel was not sufficient to require the court to halt the trial and conduct a preliminary inquiry. Appellant’s confession is attacked upon two grounds; that it was not freely and voluntarily made, and that the corpus delicti was not sufficiently proved to admit it. Mrs. Keeton was killed between Saturday afternoon, January 19, 1935, and the next Monday morning, January 21, before eight o’clock. Appellant was arrested on Friday the 25th. After her arrest, and during the balance of that day, and most of the night, she was questioned by different ones, principally officers, concerning her connection with the homicide. The confession, how-ere, which was introduced in evidence was made the following Sunday, while appellant was in jail. On the preliminary inquiry by the court as to whether the confession was free and voluntary, the witnesses present testified that it was; that neither was duress exercised, nor hope of clemency promised her. The court held that the evidence was competent and admitted it. Appellant argues that the long and persistent grilling amounted to duress. A confession in other respects admissible is not rendered incompetent because it was not the spontaneous utterance of a prisoner. The fact that the confession was obtained by persistent questioning is not sufficient alone to exclude it if the confession emanates from the free will of the accused and without the inducement of hope or fear. Underhill’s Criminal Evidence (3 Ed.), sec. 232. The finding of the court that the confession was free and voluntary will not be disturbed unless it appear that such finding was manifestly contrary to the weight of the evidence. Brown v. State, 142 Miss. 335, 107 So. 373; Stubbs v. State, 148 Miss. 764, 114 So. 827; Buckler v. State, 171 Miss. 353, 157 So. 353. The corpus delicti was sufficiently proven in order to admit appellant’s corroborating confession. Where there is a confession of guilt by the defendant, the law only requires that the corpus delicti be established to *647 a probability, and where the two taken together establish the corpus delicti beyond a reasonable doubt, that is sufficient. The principle is stated thus in Heard v. State, 59 Miss. 545: “Where there has been a confession by the accused, much slighter proof is required to establish the corpus delicti than would be necessary where the State must make out the entire case, unaided by a confession. Any corroborative proof in such a case will be held sufficient which satisfies the mind that it is a real and not an imaginary crime which the accused has confessed, and the fact that he was the guilty party may be found by the jury, on proof much slighter than that ordinarily essential.” This rule has been followed in Nichols v. State, 165 Miss. 114, 145 So. 903; Walker v. State, 127 Miss. 246, 89 So. 921; Patterson v. State, 127 Miss. 256, 90 So. 2; Garner v. State, 132 Miss. 815, 96 So. 743; Crabb v. State, 152 Miss. 602, 120 So. 569; Pope v. State, 158 Miss. 794, 131 So. 264; Perkins v. State, 160 Miss. 720, 135 So. 357; Whittaker v. State, 169 Miss. 517, 142 So. 474. It is assigned and argued that the court erred in overruling appellant’s application for a subpoena duces tecum directed to the district attorney and county attorney and one Jourdan, requiring them to produce certain written confessions alleged to have been made by-appellant for inspection by appellant’s counsel. There is no merit in this contention. The application for the subpoena should have set out the substance of what was expected to be proven by the confessions. This was not done. Eaton v. State, 163 Miss. 130, 140 So. 729; Stevens v. Locke, 156 Miss. 182, 125 So. 529. Appellant’s defense was insanity. She introduced evidence both lay and expert to sustain that defense. Tire state likewise introduced lay and expert testimony to show sanity. The state introduced, Over appellant’s objection, Drs. Fenno, Holbrook, Barrentine, Oates, Beach, and Ramsey, who testified that in their opinion she was *648 sane at the time of the homicide and at the time of the trial. Objection to their evidence was upon the ground that their testimony concerning appellant’s mental condition was privileged, and therefore not admissible under the privileged communications statute, section 1536, Code of 1930. The majority of the court hold that the statute applies to criminal as well as civil cases, except in Maddox v. State, 173 Miss. 799, 163 So. 449, it was held that the statute had no application to the testimony of the physician of the victim in a murder case,. The writer is of the opinion that the statute has no application to criminal oases. His views to that effect were embodied in an opinion in response to the suggestion of error in Davenport v. State, 143 Miss. 121, 108 So. 433, 45 A. L. R. 1348. Furthermore, he is of the opinion that where the subject-matter of.the privileged communication is made an issue in the case (whether civil or criminal), and the party making it an issue divulges the matter by introducing one or more of his physicians,, the ban of secrecy is-- lifted — the confidential matter is thereby published to the world, and the way is opened for the other side to go’ into the question in the same way. Such action constitutes a waiver. The true rule is stated thus by Wigmore on Evidence (2 Ed.), Vol. 5, pp. 220, 221, sec. 2389: “(1) In the first place, the bringing of an action in which an essential part of the issue is the existence of physicial ailment should be a waiver of the privilege for all communications concerning that ailment. The whole reason for the privilege is the patient’s supposed unwillingness that the ailment should be disclosed to the world at large; hence the bringing’ of a suit in which the very declaration, and much more the proof, discloses the ailment to the world at large, is of itself an indication that the supposed repugnancy to disclosure does not exist. If the privilege means anything at all in its origin, *649 it means this as a sequel. By any other conclusion the Jaw practically permits -the plaintiff to make a claim somewhat as foEows: ‘One month ago I was by the defendant’s negligence severely injured in the spine and am consequently unable to walk; I tender witnesses A, B, and C, who will openly prove the severe nature of my injury. But, stay! Witness D, a physician, is now, I perceive, called by the .opponent to prove that my injury is not so severe as I claim; I object to his testimony because it is extremely repugnant to me that my neighbors should learn the nature of my injury, and I can keep it forever secret if the Court will forbid his testimony.’ If the utter absurdity of this statement (which is virtually that of every such claimant) could be heightened by anything, it would be by the circumstance (frequently observable) that the dreaded disclosure, which the privilege prevents, is the fact that the plaintiff has suffered no injury at all! The privilege under these circumstances becomes a burlesque upon logic and justice.” The decisions of our court to the contrary, the writer thinks, ought to be overruled; the construction they put upon the statute comes dangerously near, in-a civil case, violating, if it does not actually do so, the equal protection clause of the Federal Constitution (Const. Amend. 14, sec. 1). Applying the rule, however, to which the majority of the court adhere, the relation of physician and patient did not exist between appellant and any of the physicians introduced by the state, except Dr. Ramsey. The action of the court in admitting Ms testimony will be considered separately. The oilier physicians examined appeEant with the view of ascertaining and testifying in the trial as to whether she was sane or insane; they were requested to do so either by officers representing the state or by counsel; their examination had nothing to do with the treatment of appellant as physicians. It was held in Norwood v. State, 158 Miss. 550, 130 So. 733, that where a physician, by direction *650 of the court, or an officer of the court, makes an examination' of the physical or mental- condition of a defendant, without objection, the relation of physician and patient does not exist, and therefore “the privilege of the statute does not arise.” The principles laid down in that case are controlling here. We have here the verdict of the jury, supported by both lay and medical testimony, that appellant was capable of consenting to the examination. When Dr. Ramsey was called as a witness by the state, appellant’s counsel objected to his testifying in this language: “If the court please we want to renew our objection to the testimony of this witness for the same reason that we objected to the testimony of Dr. Holbrook and Dr. Fenno.” As above shown, the relation of physician and patient did not exist between either of those physicians' and appellant. The objection was overruled. Dr. Ramsey then testified that he was the physician of appellant’s mother’s family, although he had never treated appellant; that he had sustained that relation for fifteen years or more ; that he had often seen and observed appellant during those years — her demeanor, conduct, and the expression of her face — and his opinion was that she was sane. He also testified that after the homicide he visited her in jail and in the hospital as her physician and treated her as such; in other words, he clearly showed that during that time the relation of physician and patient existed. Based on what he learned then, he testified that in his opinion appellant was sane at the time of the homicide and since. The privileged communication statute has no- application to what Dr. Ramsey learned by his association with and observation of appellant before the homicide; it applies alone to knowledge acquired as the result of the- relation of physician and patient. In Estes v. McGehee, 133 Miss. 174, 97 So. 530, testamentary capacity was involved. The court held that the statute did not preclude a physician from testifying to facts and circumstances derived from business *651 and social relations existing between him and the testator, segregated from the relation of physician and surgeon. It was held in Watkins v. Watkins, 142 Miss. 210, 106 So. 753, that the testimony of a physician as an expert in answer to a hypothetical question based on testimony of lay witnesses as to the mental condition-of a testator is not objectionable on the ground of privilege, although the witness had at a time prior to that in question been the testator’s physician. Appellant’s counsel interposed no other objection, either during the progress of the testimony of Dr. Eamsey or at its conclusion, looking to a separation of the competent evidence and the incompetent. The objection made was directed to the whole of it. The court was never given an opportunity to make the separation. The -person claiming the privilege must show that the relation of - physician and patient existed, and must show, further, the existence of all the conditions of exclusion. “The burden is upon one claiming privilege to show the existence of conditions entitling him to insist upon the exclusion of the proposed testimony.” 10 Ency. Evidence, p. 157. Objection to the admission of evidence must be specific. A general objection thereto, which was overruled, will not be considered on appeal, unless on the face of the evidence in its relation to the rest of the case there appears no purpose whatever for which it could have been admissible. Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445. The court permitted the state, over the appellant’s objection, to make profert to the jury and identify certain parts of the body of Mrs. Keeton. Appellant argues that that action of the court was calculated to unduly prejudice the jury against her. It devolved on the state to prove that Mrs. Keeton was dead. The evidence in question was offered for that purpose. We think it was competent. Underhill’s Criminal Evidence (3 Ed.), see. *652 101; Self v. State, 90 Miss. 58, 43 So. 945, 12 L. R. A. (N. S.) 238. Appellant assigns as error the action of the court in admitting evidence of fatty substances, shoes and stockings, and blood stains found in the home of Mrs. Keeton. This evidence, was admitted as tending to show not only the corpus delicti, but the criminal agency of appellant. It was competent for that purpose. Hunter v. State, 137 Miss. 276, 102 So. 282. Appellant argues that the conspiracy instruction given for the state was error under the principles Mid down in Rich v. State, 124 Miss. 272, 86 So. 770. It .was held in that ease that it was reversible error to- give an instruction authorizing a conviction upon the ground of conspiracy where there was no proof of such conspiracy. That is not true of the present case. There was evidence here tending to show that appellant and Carter conspired together to take the life of Mrs. Keeton, and that Carter committed the actual killing. Although the evidence of such a conspiracy is weak and uncorroborated^ still it was a question for the jury. We are of the opinion that no harmful error was committed by the court in the giving of instructions for the state, or the refusing of instructions for áppellant, and that the assignments of error based thereon are not of sufficient seriousness to call for a discussion bv the court. Affirmed.