People v. Hawthorne

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On trial before a jury, defendant was convicted of manslaughter in the killing of John Barrett. He appeals, assigning error on grounds of improper cross-examination, denial of a request to indorse on the information the name of a res gestae witness, refusal to permit expert testimony, errors in the admission of evidence, denial of a motion for a bill of particulars, and order denying new trial.

Defendant had secretly married his wife, Catherine. John Barrett had known the young woman for several years and was friendly with her. They had previously planned to marry. Barrett found out that she was secretly married, but was told by her that she had never lived with her husband as man and wife, and that the marriage was to be annulled or a divorce obtained. Defendant thereafter met Barrett and told him that if he went around with his wife again, he would kill him. Finally, a meeting between defendant, his wife, and Barrett was arranged at the home of Barrett's mother. In the presence of Barrett's mother, defendant asked Barrett if he cared enough about Catherine to marry her, if a divorce were granted, and asked Catherine if she loved Barrett enough to marry him. Upon being answered by both affirmatively, defendant mentioned that he wished to go into the kitchen for a glass of water. Shortly thereafter, he returned to the living room with two revolvers in his hands. He immediately shot Barrett; then shot his wife. He then stood over their bodies and proceeded to fire bullets into them until his revolvers were empty. He wanted to be sure of their deaths. Afterward, he surrendered to the police, and, on trial, his defense was insanity.

After testifying in his own behalf, defendant, upon cross-examination, was asked by the prosecuting attorney whether he had told his counsel that he "heard some officers or somebody whisper to the prosecutor" while a statement was being taken from defendant at police headquarters. Numerous objections to such question were made by defendant's counsel on the ground that communications to counsel were privileged. The trial court overruled the objections. Defendant then answered that he had told his counsel everything about the case; that he did not remember any particular statement, and that he did not know whether he had advised his counsel of such whispered conversations; that he would not say that he might have, or might not have, so informed his lawyer. Since no answer was made revealing disclosure of any privileged communication, and the bearing of this controversy upon the case was of practically no relevance, we fail to see, under the circumstances, that the action of the trial court in not sustaining objections by defendant's counsel resulted in any prejudicial reversible error.

Under the defense of insanity, defendant's counsel introduced in evidence the testimony of a physician, who testified as an expert, and several lay witnesses, who testified with regard to their opinions of defendant's insanity from observations of his conduct and actions. Defendant had the benefit of such testimony in support of his defense of insanity. Counsel, however, also sought to qualify, as an expert witness on insanity, a professor from the Michigan State Normal College. Such witness was not a practicing physician nor a graduate of a medical college. He had never treated insanity nor was he licensed to practice medicine in any form. His qualifications, as submitted to the court, were that he had received degrees of bachelor of arts, master of arts, bachelor of divinity, doctor of philosophy, and doctor of psychology; that he had studied at eight different colleges and had taught at four; that he gave courses in general psychology, and had written books and articles on the subject; and that he had given "mental tests." Insanity, however, is held to be a disease, In re Petition of Crosswell,28 R.I. 137 (66 A. 55, 13 Ann. Cas. 874), and, therefore, comes within the realm of medical science, which comprises the study and treatment of disease. Only physicians can qualify to answer hypothetical questions as experts in such science. The court was not in error in excluding the testimony sought to be offered.

Error is assigned in that the court permitted the introduction of a transcript of testimony taken at the examination of defendant, in the absence of the witness testifying therein, and without a showing that the witness was not available; and also in the absence of showing when, where, by whom, and under what circumstances, the transcript was taken and transcribed. The testimony was that of Dr. Drolshagen, who performed an autopsy on the body of the slain man. The witness was ill at the time of the trial. A police lieutenant testified that the doctor was confined to his bed, and that the doctor had told the witness he had collapsed in his office. No objection was made to this testimony. No specific objection was made by the defense on the ground of failure to show the circumstances attending the taking of the testimony. It is claimed that because of the erroneous introduction of the transcript, the corpus delicti was not properly shown. There was no dispute that defendant shot John Barrett; that Barrett fell to the floor; that defendant then stood over him and shot several more bullets into his body; and that aside from being turned over by his mother, the body lay there until it was removed by the coroner. We fail to see any merit in defendant's contention.

The trial court did not err in refusing defendant's request to indorse upon the information the name of Veronica Fox as ares gestae witness. There is no showing, nor does it appear from anything in the record, that the person sought to be so indorsed was a res gestae witness; in fact, from our examination of the case, the contrary appears; and the refusal of defendant's request was not erroneous.

We are further of the opinion that there was no error in refusing to order the prosecutor to furnish a bill of particulars. The information was the common-law form. The common-law governs when the common-law form of information is used, and ordering a bill of particulars under such circumstances is discretionary with the court.

Error is further assigned on the ground that an open newspaper containing an account of the case was found in the jury room pending the trial, and that the article was of such a prejudicial nature that its effect could not be cured by the charge of the court. When such incident was discovered during the trial, the judge polled and interrogated each juror as to whether he had read the article about the case in the newspaper referred to, or whether he had read any articles published about the case. Each juror answered that not only had he not read the article in question, but further that he had not read any newspaper articles about the case. In this regard, there was no error.

Judgment affirmed.

POTTER and CHANDLER, JJ., concurred with McALLISTER, J.