(107 So. 131)

No. 27361.

#### STATE v. BRODES.

(Nov. 30, 1925.

Rehearing Denied Feb. 1, 1926.)

*(Syllabus by Editorial Staff.)*

1. Criminal law &wkey;»98l(2)—Evidence held to show that rule and order to show cause why sanity hearing should not take place was served on defendant.

Evidence *held*to show that rule and order to show cause why sanity hearing of defendant, sentenced to death for murder, should not take place,' was served on defendant.

2. Criminal law <&wkey;>98l(2)—Rule and order to show cause why sanity hearing of defendant should not take place held not misleading.

Rule and order to show cause why sanity hearing of defendant, 'sentenced to death for murder, should not take place, *held*not misleading, in that defendant was led to believe that he was to show cause only on date mentioned why trial as to his mental condition should not take place on a later date.

3. Criminal law &wkey;>ll77—That rule and order to show cause why sanity hearing should not take place misled defendant held harmless.

That rule and order to show cause why •sanity hearing of defendant, sentenced to death for murder, should not take place, misled defendant to believe that he was to show cause only on date mentioned, why trial as to his mental condition should not take place on a later date, *held*harmless, where defendant was granted a continuance to produce and examine witnesses, and state’s witnesses were subjected to vigorous cross-examination by defendant’s counsel.

4. Criminal law &wkey;>98l(2)—Denial .of continuance for absent witness on sanity hearing of defendant, sentenced to death for murder, not erroneous.

Denial of continuance for absent witness on sanity hearing of defendant, sentenced to death for murder, *held*not erroneous, where application for continuance did not set forth what defendant expected to prove by such witness, and his testimony would have been merely cumulative of what he had given before, and defendant was afforded ample opportunity to procure attendance of witness before he left jurisdiction.

*3415. Criminal law <&wkey;1158(1)—Supreme Court can pass on questions of fact which trial judge has decided, and' which do not pertain to accused’s guilt or innocence.

Supreme Court in criminal case can pass on questions of fact -which trial judge has decided, and which do not pertain to question of guilt or innocence of accused.

6. Criminal law <&wkey;981 (2)—Evidence held not to show that defendant was insane when indicted for murder, or that he had become insane since trial.

Evidence *held*not to show that defendant was insane when indicted for murder, or that he had become insane since his trial.

O’Niell, C. J., dissenting.

'Appeal from Criminal District Court, Parish of Orleans; A. D. Henriques, Judge.

TVilliam Brodes appeals from a judgment re-sentencing him to be hanged in accordance with the verdict of the jury previously found.

Affirmed.

Emerson Bentley, John J. Darrieux, and W. R. Kinsella, all of New Orleans, for appellant.

Percy Saint, Atty. Gen., Henry Mooney, Dist. Atty., of New Orleans, and Eugene Stanley, Asst. Atty. Gen., for the State.

ROGERS, J.

This is the third time this matter has been before us. Defendant was charged with murder. He was convicted and sentenced to be hanged. On appeal, we annulled the sentence and remanded the case, with instructions to try and determine the issue, first, of present insanity; and, secondly, whether defendant had become insane since his trial. State v. Brodes, 156 La. 428, 100 So. 610.

The case came before us for the second time on the application of the defendant for writs of mandamus, prohibition, and certiorari to review the proceedings which were had in the district court in an attempt to comply with the mandate of this court. We found that the proceedings were irregular and not in compliance with our decree, and we accordingly set them aside, issuing the writs as prayed for. State v. Brodes, 15'7 La. 162, 102 So. 190.

The present appeal is from the judgment resentencing the defendant to be hanged in accordance with the verdict of the jury previously found. The judgment appealed from was rendered after a hearing was had, and after the district judge had reached the conclusion that the defendant was sane at the time of his trial and also sane at the present time.

The decree in the proceeding in which the remedial writs were applied for (157 La. 162, 102 So. 190) became final and executory some time near the end of the month of November, 1924. The issue ordered to be heard and determined on the first appeal of the case (156 La. 428, 100 So. 610) was evidently fixed for trial shortly thereafter, because we find in the transcript a copy of a motion filed by defendant’s attorneys, under date of February 6, 1925, in which they pray for a continuance until May 10, 1925, because of the absence of an alleged important witness, one Oapt. Conway, by whom it was declared they expected to prove that the defendant was discharged from his employ for the reason that said defendant “suffered from fits of periodical insanity.” The minutes of the court of date February 6, 1925, show that the motion for a continuance was taken under advisement by the judge. Nothing further seems to have been done in the matter until May 14, 1925. In the meantime, the term of the judge who presided at the trial of the defendant had expired, and he was succeeded by the judge who heard the proceedings and rendered the judgment which are now before us on this appeal.

On May 14, 1925, the state, through the district attorney, filed a rule against the defendant, in which he averred that the delay asked for by defendant, through his attorneys, for the production of the absent witness, had expired, and that the state was *343desirous of having the cause set down for trial, so that the matters which the court had been instructed to inquire into by the Supreme Court might be finally determined. These matters were set forth in the rule. The court ordered the defendant to show cause on May 25, 1925, why a hearing should not be had as to the matters referred to in the decision of the Supreme Court, and directed that a copy of the rule and order of court thereon be served on the defendant and on his attorneys.

On May 25, 1925, the rule to show cause came on to be heard, when defendant, through his counsel, moved for a continuance until June 4, 1925, in order to permit him to take the testimony of the witness Capt. Conway, who was represented as being absent from the city of New Orleans. The continuance applied for was refused, but the court granted defendant until June 4, 1925, to produce the absent witness. Counsel for defendant then objected to taking any testimony at that time, on the ground that the notice was for the defendant to show cause why a hearing should not be had at a later date, and that defendant was entitled to a regular notice of trial, in order that he might summon his witnesses and proceed in accordance with the mandate of the Supreme Court. The trial judge then ruled that he would grant defendant until June 4, 1925, to produce hig witnesses, but announced that he would hear the testimony of Dr. O’Hara, who intended to leave the city on June 1, 1925, to be absent for four or five months. Dr. O’Hara was formerly the coroner of the city of New Orleans, and was one of the alienists who had been previously appointed by the court to examine into the mental condition of the defendant at the time of his trial and subsequent thereto. The witness was then placed on the stand and examined by counsel for the state and exhaustively cross-examined by counsel for defendant. On the same day, Dr. Unsworth and Di\ Daspit were also examined by counsel for the state and cross-examined by counsel for the defendant. Dr. O’Hara was then recalled by the court and again cross-examined by counsel for defendant. Capt. Rennyson, warden of the prison, was also tendered, examined and cross-examined. At the conclusion of his testimony, Dr. O’Hara was again placed on the stand by the state. Counsel for defendant then objected to the witness testifying, on the ground that he had been on the stand twice, and the state had no right to recall him. This objection was overruled, and Dr. O’Hara was subjected to further examination and cross-examination. Drs. Unsworth and Daspit were also recalled and again examined by counsel for the state and cross-examined by counsel for the defendant. The hearing was concluded on behalf of the state by the placing on the stand of Hon. R. A. Dowling, the former trial judge, who was examined and cross-examined. After this witness had given his testimony, the trial judge announced that he would recall his ruling, and would give the defendant until June 5, 1925, to produce any witnesses who might be able to throw any light on the matter, and in open court informed counsel for defendant that the court would give him any aid required in getting his witnesses through the sheriff’s office.

When the case was called on June 5, 1925, counsel for defendant filed a motion for a continuance, on the ground that one of defendant’s expert witnesses, Dr. Joseph A. O’Hara, was absent, said continuance to be until such time as Dr. O’Hara could be brought into court to testify. The court overruled the motion, stating that, when the case came up for trial on May 25, 1925, counsel filed a motion for a continuance on the ground of the absence of a Capt. Conway, who was a material witness, and who would be in the city on June 5th; that the court then informed counsel that Dr. O’Hara would leave for Europe, and that he would hear the doctor’s testimony; that Dr. O’Hara was sworn *345as a witness and exhaustively examined by defendant’s counsel.

The hearing was then resumed, and counsel for defendant called and examined as witnesses Dr. Unsworth and Dr. Daspit. He also placed on the stand nine other witnesses, two of whom were deputy sheriffs in the prison, and the other seven of whom were prisoners held in said prison. The hearing was then concluded, and the trial judge rendered his opinion and pronounced his judgment.

[1] The -first complaint addressed to this court by counsel for defendant is that he was never able to ascertain if a copy of the rule and order to show cause for May 25, 1925, was served on the defendant, and that the transcript does not show any such service. He admits that he was served personally with the papers on or about May 18, 1925. Under two writs of certiorari issued by this court, the clerk of the district court has sent •up, first, a copy of the sheriff’s return, and, secondly, the original of said return. From this return, it appears that a copy of the rule and order in question was served personally on the defendant in the parish prison on May 14, 1925. This effectively disposes of the complaint that the -requisite notice was not given to the defendant. It is to be observed, moreover, that the defendant was present at the bar of the court, attended by his counsel, on May 25, 1925, and also on June 5, 1925, when the hearing was had on the rule.

[2, 3] The next complaint urged by counsel for defendant is that they were led to believe, from the language of the rule and the order thereon, defendant was to show cause only on May 25, 1925, why the trial as to his mental condition should not take place on a later date. The pleading, perhaps, could have been made plainer, but we think the fair import of its language is such that it should not have misled counsel. It is styled, “Rule to Show Cause why Sentence should Not be Pronounced.” Its recitals show the state of the case, the verdict of guilty and the sentence to death, the setting aside of the sentence by the Supreme Court, and the remanding of the case for the purpose of ascertaining the mental condition of the defendant at the times specified, the appointment of the lunacy' commission by the trial judge, and the report of said commission, the request of counsel for defendant for a continuance until May 10, 1925, in order to give them an opportunity to produce the witness Capt. Conway, the expiration of this delay, and the desire of the state to have the matter set down for trial in order to have the matters which the court had been instructed to inquire into by the Supreme Court finally determined; and the order of court indicates that the required hearing was to be had on the day named, to wit, May 25, 1925. But whatever view may be taken of the contention, the fact remains that no injury was suffered by defendant, since he was granted a continuance until June 5, 1925, for the purpose of giving him an opportunity to produce and examine his witnesses. His counsel vigorously cross-examined the witnesses placed on the stand on May 25th; and his counsel recalled and re-examined two of these witnesses, Drs. Daspit and Unsworth on June 5th. Dr. O’Hara was out of the city at that time, and counsel for defendant was evidently satisfied with the testimony which had been given by the other witnesses, Warden Rennyson and Judge Dowling, as they were not resummoned for the later hearing.

The third and final complaint of counsel for defendant is to the action of the court in overruling their motion for a continuance, filed on June 5, 1925, until the return of Dr. O’Hara, to whom they had caused a subpoena to issue to appear as a witness for defendant on said date. It appears from the record that the subpoena to Dr. O’Hara was applied for on Friday, May 29, 1925. It is to be noted that the next day, Saturday, May *34730, 1925, was a half holiday, and the following day May 31, 1925, was Sunday. The assistant district attorney testified that Dr. O’Hara had informed him that he intended to leave New Orleans on June 1, 1925, for New York, from which port he was to sail for Europe, to be gone for four or five months, and that he had subsequently learned that the doctor had actually left New Orleans as he had planned to do. This evidence was not contradicted, nor even controverted, by defendant’s attorneys. The deputy sheriff to whom the service of the subpoena was intrusted testified that he had called at Dr. O’Hara’s office for the purpose of making the service, but had found the doctor absent, and he was informed by the maid in charge that he had left the city and would be gone until October, and he (the witness) was therefore unable to serve him. Counsel for defendant contend that the deputy should have visited the home of the prospective witness in order to make the service, and that his failure to do so did not show due diligence, and that defendant was deprived of the benefit of compulsory process to procure the attendance of the witness.

The district judge, in his reasons for overruling the motion for a continuance, among other things, stated that, when the cause was being heard of May 25, 1925, he had then and there informed counsel for defendant that Dr. O’Hara would leave for Europe, and it was because of that fact that he would hear his testimony. The transcript shows that the trial judge on May, 25,1925, at the very incept tion of the proceedings, informed counsel for defendant that Dr. O’Hara was to leave New Orleans on June 1, 1925, not to return for four or five - months. On May 25th, Dr. O’Hara was on the stand three separate and distinct times. When he was recalled for the third time, counsel for defendant objected to his testifying, on the ground that he had already been on the stand twice, and that the state did not have the right to recall him for further examination. While the witness was on the stand, he was subjected to an exhaustive cross-examination by counsel for defendant.

In connection with this particular complaint of defendant’s counsel, it is to be remarked that, in their application for a continuance on the ground of the absence of Dr. O’Hara, they did not set forth what they expected to prove by the witness. Nor do we think the defendant suffered any harm by the failure of Dr. O’Hara 'to appear and testify on June 5, 1925. As we have heretofore stated, he testified fully in the matter on M-ay 25th. If he had been placed on the stand on June 5th, it would have been only for the purpose of going over the same ground which was covered in his prior examination and cross-examination. This was actually the case with’Dr. Unsworth and Dr. Daspit, who testified on both dates. The testimony of all the doctors concerning the mental condition of the defendant was along the same lines, and was in accord on the main points.

[4] We think if counsel for defendant seriously desired to obtain further testimony from Dr. O’Hara, and the issuance of the subpoena to him was not merely for the purpose of securing more delay, with the knowledge they possessed of his intention to leave for Europe on June 1, 1925, they could Lave taken measures between May 25th and June 1st to obtain said testimony to be used on the trial of the case when it came on to be heard on June 5, 1925. It is our conclusion, therefore, that this complaint of defendant is without merit.

[5] Inasmuch as this court in criminal cases is vested with the power of passing upon questions of fact which thé trial judge has decided, and which do not pertain to the question of the guilt or innocence of the accused (State v. Moore, 140 La. 281, 72 So. 968; State v. Smith, 145 La. 913, 83 So. 189), we have carefully examined the testimony given in this matter, and which is set *349out in full in the supplemental transcript on file herein, and we think it amply supports the finding of the district judge.

[6] While the testimony of the three medical experts is to the effect that the defendant is mentally of a low grade, they all agree, and assert, in most positive language, that he is possessed of sufficient reasoning power and judgment to know right from wrong, and that he is not presently insane, and that such was his mental condition at the time he was tried on the indictment for murder. There was some attempt made to show that defendant suffered from epileptic fits, but the attempt failed. There was testimony to the effect that the defendant, from time to time, was overcome by a fit or spell. The physicians, however, testified that these spells were not epileptic in character, and that the defendant was not a sufferer from epilepsy; that he was one of a great many of the negro race who are of a nervous hysterical type, who have such spells, but know what they are doing during the seizures. We gather from the testimony of the deputy sheriffs that these fits or spells only began to attack the defenddant after he was sentenced to death. The other witnesses, inmates of the jail, who testified as to the spells, apparently have been placed in prison since defendant’s sentence, and their testimony covers the period subsequent thereto.

For the reasons assigned, the judgment appealed from is affirmed.

O’NIEDL,. C. J., dissents, and will hand down reasons.

O’NIEDL, O. J.

(dissenting). Each of the three specialists who were appointed as a lunacy commission in this ease testified that the defendant had the mentality of a child 7 or 8 years of age. One of them, Dr. O’Hara, described the man thus:

> “He is of such a low grade, mentally, that he measures up to a child between 7 and 8 years of age, and he suffers from some neurosis seizure which makes him easily led and easily fooled.”

That opinion was concurred in by the two other members of the commission, one of whom, Dr. Daspit, said outright that the man was “a moron type.” There is no doubt that he is a moron, because, from the fact that one of the of the doctors testified that the man had served in the World War and was afterwards in the marine hospital, I judge that he is somewhere near 30 years of age.

He is a negro in indigent circumstances. He was put into jail a few days after the commission of the crime, and was tried and convicted on the eleventh day after the commission of the crime, being defended by an attorney appointed by the judge, and giving his services gratis. The investigation into the defendant’s mental condition, as ordered by this court, extended only over the period between the date of the defendant’s arrest and the date of the investigation. There was no available record or history of his condition previous to the date of his arrest. The only witnesses whom the attorney for the defendant could obtain were the jailers and fellow prisoners. Capt. Rennyson and Deputy Sheriff Betterly testified that the man had had some kind of fits at rather frequent intervals, that he was a good prisoner, and had been appointed captain of the yard, and served as such for four or five months. Seven fellow prisoners with Brodes, as witnesses in this investigation into his mental condition, described the fits,” or *seizures,*which he was subject to. It is true that these prisoners were either awaiting trial or under sentence for divers and sundry high crimes and offenses ; but, in producing them as witnesses, the defendant complied with the fundamental rule of producing the *best evidence*available, and their testimony is not contradicted in any respect. On the contrary, it is eorrobo*351rated by tbe testimony of the defendant’s keepers.

Judge Dowling, before whom, Brodes was tried and convicted of this crime of murder, but who had ceased to be judge when the ease was remanded for this investigation into Erodes’ mental condition, testified as a witness for the state in this proceeding. Judge Dowling described the strange conduct that Brodes went through during his trial, and, from the judge’s description, I am convinced that the defendant was not mentally capable of defending himself. The judge testified that the defendant would not take advice from the attorney appointed to represent him; that he kept insisting upon his right to take the witness stand and tell all about the murder, in order to implicate two other men who were on trial for the crime; that Brodes followed him, the judge, into the latter’s office, and, in presence of the assistant district attorney, who was prosecuting him, and against the protest of his own attorney, and against the advice of the judge, insisted upon his right to take the witness stand and make a complete confession of the crime, which right was denied him. The judge testified that he thought that the man was very excited, but not insane. I am convinced that he was sufficiently insane to be incapable of defending himself in this prosecution for murder, in which he is condemned to die.

I would not approve of hanging a child 7 or 8 years of age, or of trying a child for murder, at that age. It is less inhuman, I believe, to put to death a moron having a mind of a 7 or 8 year old child, than to put to death a child at that age; but the law does not read that way.

My opinion is that the verdict and sentence in this ease ought to be set aside, and the defendant sent to the asylum for the criminal insane. Therefore I dissent from the opinion and decree rendered in this case.