The opinion
TATE, Justice
(dissenting).
Simple fairness requires a reversal; at the very least, for a remand for re-trial. No medical evidence was introduced to show that the victim died because of any action by the defendant. The defendant was denied his right of confrontation with and cross-examination of the parish coroner, the only medical witness who had possibly exculpating knowledge.
The sole evidence, aside from the coroner’s written autopsy report, was lay testimony as follows: The defendant Holmes and the victim Collins fought about ten p. m. on Saturday night. Before they were separated, Holmes had stabbed Collins in the neck with a penknife.
Collins went to the hospital, where the slight cut was stitched up and a band-aid placed on it. He was discharged and returned home. Next morning about 10:30 he suffered “convulsions”, according to his wife, and he was taken to the hospital, where he died just after noon.
According to the lay testimony, Collins had a very bad heart condition for about eight years prior to the fight. There is no medical or other evidence (the autopsy report possibly excepted) to show that the penknife cut of Saturday night contributed to Collins’ death. This was after his discharge from the hospital and return home, when he suffered convulsions and died, some fourteen hours later after the penknife cut.
Now, let us look at this autopsy report. The substance of it is only that the coroner states he saw the body of a 42-year-old colored male with a stab wound. It does not indicate, for instance, whether the wound was one made by a penknife, nor *241 whether, if so, the-wound was of a type that could result in death 14 hours later instead of immediately. I doubt the laymen on the jury could deduce from the technical medical terminology of the report any factual or opinion evidence comprehensibly related to the crucial issue of medical causation.
It is obvious that, under the circumstances of the delayed death (following an initial discharge for a presumably minor cut) and the prior history of heart trouble, that the medical cause of death is the principal issue in this prosecution for murder (which carried a death penalty if the jury so decided). It was obvious also to all counsel before trial.
The record shows that the state had subpoenaed the coroner, Dr. Williams, a week before the trial. Although the counsel for the indigent defendant as a precaution might have subpoenaed this official also, I feel he was justified in assuming that such presumably unbiased public official would be available to testify and to explain the probabilities (or improbabilities) that the penknife cut fourteen hours earlier had contributed to the death.
The defendant counsel learned at the trial when the autopsy report was introduced, for the first time, that the state was going to rely upon this rather than upon the coroner’s live testimony (subject to cross-examination) to prove the cause of death. The defendant immediately subpoenaed the coroner, and, on learning he was at a convention in Shreveport, asked for a recess until the following morning (Saturday), it then being 3:15 p. m. Friday.
By appropriate bills of exceptions, the defendant reserved his right to question on appeal his conviction because (1) the autopsy report was introduced, without the proces verbal (both being required by Article 105, La.Code Crim.P.), (2) the state’s case did not contain any evidence proving that the penknife stab had caused or contributed to the death, and (3) the trial court did not grant him a recess to secure the coroner’s testimony on this essential issue.
In my opinion, probably all three complaints are justified on purely legal grounds. What I most object to, however, is the essential unfairness, the triclcsmanship, in failing to produce medical evidence, when the crucial issue is a close case of medical causation, in the prosecution of a man on trial for his life. Under the circumstances, our trial brother abused his discretion in failing to recess the trial until the next morning to permit the defendant to produce this testimony, the availability of which to him had been unfairly denied.
I respectfully dissent from the affirmance of this conviction.
*243
On Application for Rehearing
Rehearing denied.
BARHAM and TATE, JJ„ are of the opinion a rehearing should be granted and assign written reasons.