# State v. Holmes

> Supreme Court of Louisiana · February 24, 1971 · 258 La. 221

URL: https://www.frixlaw.com/law-library/cases/9679263

## Case

- **Full name:** STATE of Louisiana v. Freddie HOLMES
- **Court:** Supreme Court of Louisiana
- **Decided:** February 24, 1971
- **Citations:** 258 La. 221; 245 So. 2d 707; 1971 La. LEXIS 4454
- **Precedential status:** Published
- **Opinion:** Dissent by Barham
- **Judges:** Hamlin, Barham, Tate
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9679263

## Opinion text

BARHAM, Justice
(dissenting).
The defendant has been convicted of murder. He has complained under a number of bills of exception of the failure of the coroner to respond to the State’s subpoena or to his subpoena instanter, of the failure of the court to grant him a recess, until he could secure the coroner’s presence, and finally of the failure of the trial court to direct a verdict of acquittal because the State had failed to prove an essential ingredient of the crime — that is, the cause of death of the person whom the defendant was accused of murdering. I am of the opinion there is merit in the pertinent bills of exception, Nos. 20, 21, and 22.
The only evidence presented as to the cause of death in the entire proceedings follows:
“Autopsy Report
Baton Rouge, Louisiana
East Baton Rouge Parish
September 3, 1967_
“I, Chester A. Williams, Jr., M.D. of the Parish of East Baton Rouge, having been notified by Our Lady of Lake Hospital of the death of Robert Collins and having answered said notification, state that this, was body of 42 year old Colored male Stab wound entry just superior to head left clavicle (sutured! going down through sternum and backward into left carotid at arch aorta. Massive hemorrhage into mediastium with pressure on trachea and *237 cerebral anoxia. 12:15 P.M. 9-3-67 Stab laceration left carotid at arch of aorta
"fsgdl C. A. Williams
“Coroner.”
It is my opinion that this does not establish that Robert Collins died as a result of a stab wound.
This court m State v. Hudson, 253 La. 992 , 221 So.2d 484 , on its own motion attempted to declare unconstitutional the directed verdict statute, Code of Criminal Procedure Article 778. I will not repeat all the reasons assigned in my dissent in that case, but I am of the opinion that the court could not and did not (except in dictum) pass upon the constitutionality of this article. The issue was not before the court, and the matter, not being jurisdictional, could not have been noted ex proprio motu.
When the State completed its evidence in the present case, an essential ingredient of the crime of murder, the cause of death, had not been established. It was an affirmative obligation of the State to prove the cause of death, and the defendant was ■entitled to have the judge acquit him at that point because the State had failed to come forward with that proof. I am of the opinion that the directed verdict should have been entered for the defendant, and that we should now order him discharged.
Realizing that a majority of the court .are unlikely to recant so recent a pronouncement as that made in Hudson, I then further dissent, being of the view that the defendant is at least entitled to a new trial because of the arbitrary refusal oi the judge to grant a recess in order to receive the testimony of a vital witness whc had been not only subpoenaed (receiving actual service) by the State but whose attendance defense counsel also sought by instanter subpoena. A reading of the testimony attached makes it apparent that a principal defense in this case was that the cause of death was not attributable to a stab wound. The surface evidence of the stab wound must have been minor, for after treatment by a physician on the day of the occurrence, it was sutured and covered with a bandaid. The victim returned home. He was brought back to the hospital on the following day because of convulsions and died at the hospital. Defendant would apparently contend that the victim died of a heart attack not associated with the stab wound.
None of the cases cited by the majority are apposite to this situation, where conviction or acquittal in this capital case rests upon proof of cause of death, and the evidence offered to establish this consists of one written paragraph which states only the location of a sutured wound and the finding of a laceration of an artery in a dead man. The so-called “autopsy report” signed by the coroner and quoted above, is simply a report of the physio *239 logical findings of a post-mortem examination. It is not the coroner’s report required under Code of Criminal Procedure Article 105 which “shall certify the cause of death”. In short, these physiological findings do not, in and of themselves, establish the cause of death. I would concede the likelihood that the laceration of the left carotid at the arch of the aorta would produce death, but the State is charged with a greater burden than merely establishing the wounds; it must establish that these wounds caused death. The record is devoid of this proof.
I am of the opinion that the defendant should be discharged under his bills of exception reserved when the trial court refused to enter a directed verdict. Alternatively, I am of the opinion that this matter should be remanded for a new trial under the bill of exception which complains of the failure of the trial judge to grant a recess in order to obtain an essential witness who ignored the State’s subpoena and whose attendance the defendant was not able to secure by instanter process. I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9679263. Public record. Not legal advice.