I fully concur with the majority opinion in holding that defendant's second bill of exception has no merit. I respectfully dissent, however, from the opinion of the majority that, because Chief of Police George Gray had not qualified as an expert witness and had not shown that he possessed any personal knowledge of the facts he related, or revealed the source of information on which he based his testimony, it was error for the district court to permit him to identify and explain certain documents used as paraphernalia by the accused in the operation of a handbook.
The documents introduced and filed in evidence, about which the witness was testifying, had been seized in defendant's place of business by the arresting officers on June 28, the date of the offense charged in the bill of information, and consisted of racing sheets, the Daily Racing Form, and tickets with numbers printed thereon.
The majority opinion reversed the district judge on his rulings on objections to certain questions propounded to the chief of police, as disclosed by Bills of Exception Nos. 6 and 7.
Bill of Exception No. 6 contains the following testimony: "Q. Chief, I hand you *Page 778 some of these documents that have been introduced, bearing the date June 28, 1946, and ask you to examine them and tell me, if you can, what they are. A. Well, I don't know I could describe it by proper name. I could tell you how it is used. It is a form that is used in connection with horse racing, particularly where the information is received — "
At this point in the witness's answer, counsel for defendant objected on the ground that the witness was not an expert; that, unless he had experience betting on horses, he was not qualified to answer.
In Bill of Exception No. 7, we find the following: "Q. The documents contained in the cigar box, do you know what part they played? A. Yes, sir, these are tickets that were issued. They were issued in duplicate, the man making the bet keeps one part of it."
To this question and answer defense counsel objected on the ground that the witness was giving his opinion as to something he did not know of his own personal knowledge.
Both of defendant's objections were overruled, and the witness then proceeded to identify and explain the documents about which he was being questioned. The trial judge's per curiam to Bill No. 6, which he states is applicable to Bill No. 7 also, reads as follows: "The Chief of Police explained to the Court the racing forms which were seized at the time of the arrest as well *Page 779 as the other documents. The Chief was familiar with these matters and satisfied the Court that he was competent to testify and was seemingly very clear. It is my opinion that the evidence was clearly admissible."
There is no doubt whatsoever that the documents themselves were admissible in evidence. Furthermore, the objection is not aimed at this officer's testimony per se, but is based solely on the ground that he was not qualified to answer these questions. In my opinion, the documents speak for themselves, and it does not take an expert to identify or explain them. For instance, on the racing sheets, we find very plainly printed the name of the race track, post time, number and length of each race, and date, and on the Daily Racing Form the names of the various race tracks throughout the country, together with the names of the race horses, probable jockeys, their weights, probable odds, amount of purse, number of race, and other data. As to the tickets, the amount bet and whether the bet was made for the horse to win, place, or show were indicated thereon.
In my opinion, the testimony of the witness was not a conclusion or observation or deduction from facts; he was testifying simply to facts, as facts, for he very plainly stated as a fact what the various documents were.
In State v. Hollingsworth, 160 La. 26, 106 So. 662, 663, a witness for the State *Page 780 was asked the following question: "State whether or not this tincture of Jamaica ginger you bought from the defendant was fit for beverage purposes." This question was objected to by counsel for the defendant on the ground that it called for the opinion of the witness and that the proper foundation had not been laid; or, in other words, that the witness had not been qualified as an expert. The objection was overruled, and on appeal this court found that the ruling was correct, stating: "* * * the question whether or not an extract of Jamaica ginger be or be not fit for use as a beverage involves only a question of fact, dependant upon personal experience or observation, as to which any witness may testify without specially qualifying as an `expert.' The extent of such experience or observation may, of course, be inquired into on cross-examination."
See also State v. Williams, 111 La. 205, 35 So. 521.
In the instant case, counsel for defendant did not cross-examine this witness as to the extent of his experience or observation in these matters, as counsel had a right to do.
The identification by the witness of the objects introduced by the State was testimony as to facts, and not opinion evidence. One does not have to be an expert witness or an experienced gambler to testify that a poker chip is a poker chip, and to explain how it is used in the game. Horse racing, the terminology used in connection therewith, *Page 781 and the paraphernalia incident to betting on horse racing are not unusual things about which the public in general is totally ignorant. The Daily Racing Form, for instance, may be purchased at almost any newsstand. In my opinion, the testimony of the chief of police in regard to the documents was admissible as testimony of fact, and its sufficiency was a matter for the trial judge, who stated that the chief of police was familiar with these matters and satisfied the court that he was competent to testify. I do not find any manifest error in his ruling.
I respectfully dissent.