On February 4, 1941, the district attorney filed a bill of information against the defendant, charging that he "did shoot Mrs. James Ira Snowden with a dangerous weapon, to-wit: a pistol, with intent to *Page 1078 commit murder". Mrs. James Ira Snowden was the wife of the defendant.
The defendant was brought into court on February 7, 1941, accompanied by his counsel, who filed a "Plea of present insanity and plea of insanity at the time of the alleged commission of the crime". On February 14, the accused was again brought into court, accompanied by his counsel, and the plea of insanity previously filed was submitted to the court on affidavits filed; whereupon the court appointed Doctors D.L. Kerlin and D.H. Duncan, experts in mental diseases, to examine the defendant with regard to his mental condition, and directed them to make their report in writing to the court within 30 days.
On March 19, the experts appointed by the court filed their reports in open court. They reported that they found defendant to be sane at the time the crime was alleged to have been committed and sane at the time the report was made. The court on April 5, after considering the reports made by the psychiatrists and the affidavits filed, found defendant to be sane and denied his plea.
Defendant was arraigned on May 16, and entered a plea of not guilty and pleaded insanity at the time the crime was alleged to have been committed, and the case was fixed for trial for May 28, on which date a jury of five was empaneled and sworn. The plea of insanity was submitted to the jury.
The defendant was convicted of shooting with intent to kill and sentenced to hard *Page 1079 labor in the state penitentiary for one year. From the conviction and sentence defendant appealed.
The errors on which defendant relies for reversal of the conviction and sentence are set forth in three bills of exception, two of which relate to the same issue and will be discussed and disposed of under the same heading.
The first bill on which defendant relies was reserved to the refusal of the trial judge to order a mistrial and a discharge of the jury. The facts relating to this alleged error are substantially as follows:
The jury was empaneled and sworn on May 28, 1941, and the trial was begun by the calling and examining of one witness. The case proceeded until the hour of adjournment, when the jury was discharged for the day and the jurors were permitted to separate under proper instructions by the court.
The Shreveport Journal, an afternoon paper published in the City of Shreveport where the trial was being conducted, in its issue circulated on the afternoon of the day on which the trial was begun, carried a lengthy news article about the case, under the following bold headlines:
"Razor Found on Snowden
"When He Arrives in Court"
Among other things, the following recital was contained in the news article:
"Just before court opened, with Judge Robert J. O'Neal presiding, Deputy Sheriff Ed Ward came into the courtroom and informed Deputy R.E.L. Huckabay, court attendant, that a report had reached the *Page 1080 sheriff's office that Snowden has a pistol in his pocket.
"Deputy Huckabay motioned Snowden into an anteroom, and with Deputy Ward searched him.
"They found no pistol, but did find an old-type straight razor in a case in his pocket. The case had a rubber band about it.
"Snowden, the officers said, told them that he had brought the razor for Wellborn Jack, his attorney, as evidence in the case. The razor was taken in charge by the officers, and few persons in the courtroom were aware of the incident."
The Shreveport Times, a morning newspaper published and extensively circulated in the City of Shreveport, carried a lengthy article about the case in its edition published in the early morning of the day after the trial was begun, under the following bold headlines:
"Witness Describes How
"Snowden Wounded Wife"
The article recited at length the facts relating to the shooting of Mrs. Snowden by the defendant, her husband, as detailed by the witness Mrs. W.J. King, who was called by the State and who had given her testimony on the previous day, the first day of the trial. The last paragraph of this article reads as follows:
"Snowden was searched on his appearance in court yesterday after Deputy Sheriff Ed Ward said he had been informed the defendant was carrying a pistol. When searched by Deputy Ward and Court Deputy R.E.L. Huckaby, Snowden *Page 1081 was found to have in his pocket a straight razor in a case. He said that he had brought the razor to court for his attorney to use as evidence in the trial."
On the morning of May 29, the second day of the trial, and after both newspapers had been distributed throughout the city, the jurors came into court at the hour set for the resumption of the trial. Thereupon counsel for defendant requested that the court order a mistrial and that the jury be discharged, on the ground that the newspaper articles were highly prejudicial to the interest of the accused. The trial judge refused the request of counsel on the ground that it had not been shown that the members of the jury had read the articles. Counsel for defendant then requested the judge to ascertain from the jurors whether they had read the articles. The judge asked them whether they had read the article in the Shreveport Journal, and one of them said that he had. Each of the other four said he had not. They were then asked by the judge whether they had read the article in the Shreveport Times. One of them said that he had, and each of the others that he had not.
Counsel for defendant, then present in court, asked no questions. There is nothing to show that the juror who read the article in the Shreveport Journal had mentioned that article to the other four, nor is there anything to show that the juror who read the article in the Shreveport Times had mentioned that article to the others. Counsel for defendant suggests that the presumption is that the two jurors *Page 1082 who had read the articles had related to the others the substance of what they had read. Assuming, however, that they had, the fact is that no attempt whatever was made by counsel for defendant to show that the articles in the newspapers had influenced the jurors in the slightest degree. The judge in questioning the jurors did not refer to that point, and counsel for defendant did not request him to question them as to what impression, if any, they received from the newspaper articles or whether they were influenced by them. Counsel for defendant has argued orally and in brief that the articles were prejudicial per se, and that it must be assumed that the jurors were prejudiced thereby.
If it be conceded, as counsel argues, that the articles are prejudicial in their nature, the fact is that counsel for defendant neither showed, nor attempted to show, that the jurors who read them paid any attention to them or that the reading of them influenced the jurors in the slightest degree in reaching a verdict. Counsel for defendant made no attempt to show injury. We cannot assume injury when none is shown. On the contrary, under the facts shown, we must assume that defendant was not injured.
The court had not previously instructed the jurors not to read articles in the newspapers relating to the trial. But, before proceeding further with the trial, the judge said to them, "The Court now instructs you not to read any articles in the newspapers with reference to the trial of this case." The court then said to the jurors: *Page 1083
"The Court further states that the articles, were in error, as published in the newspapers, and the facts stated therein, are not true, and if you read any articles, not to give any credence to the statements contained in the papers, because they have no bearing on the case."
The court not only instructed the jurors to pay no attention to what they had read, if they had read the articles, and to disregard them entirely, but told them that, as a matter of fact, the statements made in the articles were not true.
The falsity of the news articles referred to by the judge related to the statement in the newspapers that defendant had appeared in court with a straight razor in his pocket, whereas the testimony adduced at the trial showed that defendant did, on that morning, have in his pocket a knife, which he had, according to his testimony, brought to his counsel to be exhibited in evidence. The two deputy sheriffs testified that, whereas it had been reported to one of them that defendant had come to court armed with a pistol, yet, when they searched him, they found not a pistol, but a knife, in his pocket, which knife, defendant told them, he had brought to give to his attorney so that it might be filed in evidence as an exhibit.
The judge in his per curiam says in connection with his interrogation of the jurors that:
"* * * whereupon the Court stated to the jurors that the article was erroneous in point of fact, and that they should disregard it, and try the case on the evidence *Page 1084 adduced at the trial. Counsel did not question the jurors.
"There was nothing to show that the article in any way influenced the jury and no prejudice being shown the defendant was not entitled to a mistrial."
Further on in his per curiam the judge states:
"The verdict, in my opinion, should have been guilty as charged. I am satisfied that the articles in the newspaper did not influence the jury to find the verdict of guilty."
The ruling of the court was correct. We must assume that, if the reading of the newspaper articles had any prejudicial effect, such effect was removed by the special instruction which the court gave to the jury. In order to justify this court in reversing a conviction under such circumstances as are disclosed in this case, injury and prejudice must be shown. Marr's Criminal Jurisprudence, under the general heading "Injury Must Be Shown"; State v. Hoffman, 120 La. 949, 45 So. 951; State v. Alvarez,182 La. 908, 162 So. 725; State v. Green, 185 La. 175, 168 So. 766; State v. Taylor, 192 La. 653, 188 So. 731; State v. McClain,194 La. 605, 194 So. 563.
The other two bills of exception relate to the same point. As we have already stated, the court appointed a lunacy commission to examine the defendant and make report concerning his plea of insanity. The commission made its report in writing after hearing the testimony of several witnesses, which testimony was by *Page 1085 the commission reduced to writing and attached to the report.
The defendant at the trial of the case called as a witness a psychiatrist who was not a member of the commission. This expert was of the opinion that the defendant was insane both at the time of the commission of the crime and at the time of the trial. While he was being interrogated as a witness, he was handed the report of the lunacy commission and asked whether he had taken that report into consideration in reaching his conclusion that defendant was insane. He stated that he had. Counsel for defendant then requested that the report, together with the testimony on which the commission based its conclusion that defendant was sane, be read to the jury.
Counsel's avowed purpose in offering to read the report of the lunacy commission was to acquaint the jury with the facts on which the lunacy commission based its report. Article 465 of the Code of Criminal Procedure provides that "Every expert witness must state the facts upon which his opinion is based".
Defendant's plea of insanity was submitted to the jurors and had to be determined by them. The experts called by the State testified that in their opinion defendant was sane. The jurors had the right to know the facts on which their opinion was based. Aside from the rule laid down in Article 465 of the Code of Criminal Procedure, the settled jurisprudence seems to be that, where expert witnesses give opinion evidence, the facts *Page 1086 upon which they base their opinions must be disclosed to the jury.
In this case, the members of the jury did have the benefit of the facts on which the experts based their opinion, because every one of the witnesses previously examined by these experts was called as a witness and testified before the jury. For that reason, it was not necessary that the report and the testimony attached thereto be read. The judge in his per curiam said:
"Counsel is in error in stating that the jury was entitled to hear the record read on which the doctors based their conclusions; the doctors were placed on the stand and gave their opinion and were examined and cross examined by the State and defense, and all of the witnesses were likewise placed on the stand, and it is from that evidence that the jury is to determine whether the defendant was sane or insane."
The judge stated in another part of his per curiam that it appeared that the reason counsel for defendant wanted the report read to the jury was to contradict the testimony of a witness he had called. The witness referred to is Mrs. J.H. Snowden, the mother of defendant, who testified before the lunacy commission that her son as a boy "would go into tantrums, and that defendant had been married three times and could not get along with either wife", etc. She was called as a witness for defendant and testified at the trial that her son as a boy was normal and that he had lived with his second wife without difficulty. The judge in his per curiam *Page 1087 said that, in as much as Mrs. Snowden had been called as a witness for defendant, he could not impeach her testimony by reading to the jury the testimony she had given before the commission. The judge was of the opinion that "the only purpose of getting the statement read before the jury was to show that Mrs. Snowden had made a different statement before the commission".
Since the jury had the benefit not only of the testimony of the two experts appointed by the court as a lunacy commission, but of the testimony as well of each and every one of the witnesses interrogated by the members of the commission, the judge did not err in excluding the documents offered by defendant.
The conviction and sentence appealed from are affirmed.
HIGGINS and McCALEB, JJ., concur in the decree.
FOURNET, J., dissents and hands down reasons.
PONDER, J., dissents.