In January, 1975, appellant was tried for murder and found guilty of manslaughter. This appeal is from a denial of a motion for new trial.
1. Appellаnt urges that the court erred in charging the jury that appellant had the burden of proving insanity by a preponderance of the evidеnce. This ground is unavailing. Although charges placing the burden of proof on the criminal defendant by either a preponderancе of the evidence or beyond a reasonable doubt are now considered erroneous
(Thornton v. State,
2. Appellant contends that the admission of a medical report constituted reversible error. The medical report was written on behalf of the hospital staff by a doctor in his capacity as hospital director and stаted that "the staff is of the opinion that Ms. Smith was not psychotic at the time of the alleged crime.” The doctor preparing the rеport had examined appellant and testified at the trial.
Here a proper foundation was laid for the admission of the diаgnostic statement in question — the person who entered the diagnostic opinions and conclusions qualified as an expert and rеlated facts upon which the entry was based.
Dennis v. Adcock,
*721 This argument must fail.
3. In Enumeration 3 appellant asserts that it was error to overrule appellant’s оbjection to a question. In Enumeration 4 it is claimed that the court erred in striking the response to the question to which appellant had objected. Since striking the answer achieved the same result as if the original objection had been sustained, the error, if any, was not harmful. These enumerations are without merit.
4. Appellant alleges that the court erred in refusing to permit a state’s witness, a nurse who hаd assisted in the examination of decedent’s body, to answer appellant’s question regarding an event which had occurred threе years prior to the alleged crime. The record shows that the witness could not recall the events.
A nonexpert witness is qualified tо state an opinion as to mental condition provided the opinion is accompanied by the facts upon which they arе founded.
Choice v. State,
5. Appellant asserts error in thе admission of appellant’s confession following a Jackson v. Denno hearing because of the possibility that appellant was intoxicated when interrogated. While there was evidence that appellant had been drinking before her arrest, she was nоt interrogated until some 10 hours after the arrest.
Here appellant’s observed behavior was not inconsistent with the ability to freely аnd voluntarily waive rights for the purposes of making a confession.
Hayes v. State,
6. Appellant called as a witness a psychology technician who satisfied state requirements for administering tests, interviewing patients and submitting evaluations to a clinical psychologist for approval. The technician had a B.A. in psychology and had been employed about 11 months when the witness tested appellant. Appellant maintains that the court erred in not permitting this witness to give an opinion as to appellant’s mental condition at the time of the alleged *722 crime. The witness observed and tested appellant at least two months after the alleged crime, but apparеntly did not observe appellant prior to testing.
The exclusion was proper. A nonexpert may not give an opinion as to thе sanity of a person at the time of commission of an alleged crime based solely on observations of the accused months after commission.
Choice v. State,
We cannot say that the court erred in not qualifying the witness as an expert in the interpretation of psycholоgical tests. "It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle him to be deemed prima facie an
expert." Barrow v. State,
7. The appellant asserts error in the court’s refusal to allow an expert witness, a clinical psychologist, to testify as to her opinion of appellant’s mеntal condition based on the tests administered by a state-employed psychology technician.
Tompkins v. West,
However, inasmuch as the cliniсal psychologist was permitted to answer an exhaustive hypothetical question which incorporated the test results and cаse history, we hold this enumeration to be without merit.
8. In Enumerations 9-14 appellant contends that the refusal of the trial judge to admit six of aрpellant’s exhibits constitutes reversible error. These exhibits were hospital records containing diagnostic opinions and conсlusions.
"Where hospital records are properly certified, the effect of such certification is to dispense with preliminary proof of authenticity on the part of the custodian of the records, but not to make admissible any matter contained in the reports which is otherwise subject to objection.”
Dennis v. Adcock,
"The rules relevant to the introduction of medical records, in a substantive sense, rеmain unchanged. 'If a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is
*723
laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.’
Cassano v. Pilgrims, Inc.,
9. Appellant maintains error was committed in permitting the state to call a rebuttal witness whose name did not appear on the list of witnesses furnished to appellant by the district attorney as required by Code Ann. § 27-1403.
The witness was called in rebuttal to thе appellant’s defense of insanity, and was allowed to testify upon the district attorney’s statement that he had no knowledge that such witness would be needed at the time he furnished the list of witnesses to appellant. An exception to the requirements of Code Ann. § 27-1403 exists ". . . (W)hеre the state had no prior knowledge that the testimony of a witness would be needed for rebuttal at the time such list was furnished...
Yeomans v. State,
Judgment affirmed.