CARR, Presiding Judge.
This case was originally assigned to Judge PRICE.
The members of the court found themselves in disagreement and unable to reach an unanimous conclusion as to certain controlling questions, so we certified these to the Supreme Court.
In the opinion now prepared by Judge PRICE, there appears the response of the Supreme Court to our abstract questions, and also a delineation of additional testimony given by Dr. J. B. Wiley. These facts are sufficient to form the basis for my views.
The Supreme Court held in effect, 82 So.2d 296, that a physician who is qualified and licensed under the laws of our State to engage in the general practice of medicine is qualified as an expert to testify as to the sanity or insanity of a person. However, "* * * in order for him to be qualified to express an opinion as an expert based only on personal observation or examination, such observation or examination must have been with reference to the person's mental status."
In the case at bar the critical question for decision is whether or not the evidence tends or establishes an inference that Dr. Wiley did observe or examine the defendant with reference to her mental status.
We have a long line of authorities which hold that the admission of evidence without sufficient foundation for its admissibility, if error when it is introduced, is without injury if subsequently in the trial proceedings the essential and required connecting proof is established.
This rule has been applied to expert testimony. Traffenstedt v. State, 34 Ala.App. 273, 38 So.2d 619; Snow v. Allen, 227 Ala. 615, 151 So. 468.
Without dispute in the evidence in the instant case the appellant was highly nervous and had been for some time.
I am unable to escape the conclusion that over this long period of time he examined and observed both the physical and mental status of the defendant. Certainly, a fair inference arises from the evidence that he did. If he did not, I am unable to see how he could have arrived at the conclusion that her nervous condition was not attributable to a mental status, but rather to a physical condition.
Judge HARWOOD concurs in the conclusion reached by the writer. Therefore this will become the majority opinion of this court.
It is ordered that the judgment below be affirmed.
PRICE, Judge (dissenting).
Appellant was indicted for murder in the first degree. Upon arraignment she interposed pleas of not guilty and not guilty by reason of insanity. She was convicted of manslaughter in the first degree and sentenced to eight years in the penitentiary.
It is undisputed in the evidence that appellant shot and killed her husband, Floyd Smith.
The question of the correctness of a ruling by the trial court on the admission of evidence was certified to the Supreme Court. The response by the Supreme Court, which sets out the question, is as follows:
"We have received the following communication from the Judges of the Court of Appeals certifying to us, under the provisions of Code 1940, Tit. 13, § 88, questions of law as to which said Judges differ, to-wit:
"The following abstract questions are hereby certified to your court for an opinion as guidance to our court in said cause:
"(1) Is a regularly licensed physician, by virtue of that fact, qualified as an expert to give opinion evidence as to sanity or insanity?
"(2) If your answer to the foregoing question is in the negative, then is a regularly licensed physician by virtue of his association with the patient, such as is disclosed by the quoted portion of the record, thereby rendered qualified to give expert opinion evidence in the field of mental diseases?
"The foregoing are propounded under the provisions of Title 13, Section 88, Code of 1940. As aid in determining this inquiry, the transcript is herewith submitted.
"Reply to Certified Questions
"It seems to be well-established in this jurisdiction that, as a general proposition, a physician who is qualified and licensed under Alabama law to engage in the general practice of medicine is qualified as an expert to formulate an opinion as to the sanity or insanity of a person, although such physician is not a specialist in mental diseases. Tullis v. Kidd, 12 Ala. 648, 649, 650; McAllister v. State, 17 Ala. 434, 437, 438, 52 Am.Dec. 180; In re Carmichael, 36 Ala. 514, 522-524; De Phue v. State, 44 Ala. 32, 39; Braham v. State, 143 Ala. 28, 38 So. 919; Odom v. State, 174 Ala. 4, 7, 8, 56 So. 913; Fondren v. State, 204 Ala. 451, 452, 453, 86 So. 71; Rhodes v. State, 232 Ala. 509, 510, 168 So. 869; White v. State, 237 Ala. 610, 612, 188 So. 388; Towles v. Pettus, 244 Ala. 192, 197, 12 So.2d 357; Stallworth v. Ward, 249 Ala. 505, 507, 31 So.2d 324. However, the principle is recognized in some of the decisions that a physician cannot express his opinion as an expert when such opinion is based on his examination or observation of a person, unless such examination or observation was with reference to the person's mental condition. Smarr v. State, 260 Ala. 30, 35, 36, 68 So.2d 6; Wise v. State, 251 Ala. 660, 664, 38 So.2d 553; Woods v. State, 186 Ala. 29, 32, 33, 65 So. 342; Porter v. State, 140 Ala. 87, 91, 92, 94, 37 So. 81; Kroell v. State, 139 Ala. 1, 5, 6, 13, 14, 36 So. 1025. This is not to say that a physician is incompetent to express an opinion as a non-expert when the opinion is based on his examination or observation of a person without reference to his mental condition. Of course, when so testifying, the rules applicable to non-experts apply.
"We quote the following from Weihofen, Mental Disorder as a Criminal Defense (1954), pp. 273, 274, 277, as bearing on the question under consideration:
* * * * * *
"From the quoted excerpt from the testimony, supra, it is apparent that the basis for the physician's expert testimony was his personal examination and observation of the defendant. However, it further appears from the excerpt that neither his examination nor his observation was with reference to the defendant's mental condition. Thus the critical question for us is whether the physician was competent to testify as an expert with respect to defendant's mental condition. From a consideration of the Alabama cases, supra, our view is that a physician, although generally qualified to testify as an expert as to the sanity vel non of a person, in order for him to be qualified to express an opinion as an expert based only on personal observation or examination, such observation or examination must have been with reference to the person's mental status. Accordingly, based on the quoted excerpt of the testimony, our conclusion is that the physician in this case was not competent to express an opinion as an expert with respect to defendant's sanity."
The further testimony of the witness immediately following the portion quoted in the certified question is as follows:
* * * * * *
From the physician's statements regarding his diagnosis of Mrs. Smith's condition, it is clearly evident that his examination and observation of her was with reference to her physical rather than to her mental condition. His explanation of the term "anxiety neurosis" was not shown to be related in any way to his examination of defendant, being merely an abstract definition of that term, with no testimony as to
We have examined the record with reference to other insistences of error and find no merit in them; hence discussion of these points is unnecessary.
The judgment of conviction in my opinion should be reversed and the cause remanded.