45 So. 267 | La. | 1907
Statement of the Case.
Defendant, having been convicted of assaulting one Caroline Pierre by feloniously and willfully shooting at her with a dangerous weapon, to wit, a pistol, and duly sentenced, presents his case to this court by means of bills of exception (1) to the overruling of his objection to testimony tending, as he alleges, to show another offense; (2) to the refusal of the court to permit the accused to offer evidence to contradict and impeach a state witness called in rebuttal; (3) to the failure of the judge to charge “that the jury might find the accused guilty of assault if the facts and the law justify the same”; (4, 5) to the refusal of the court to grant a new trial.
1. The prosecutrix was allowed to testify, over the objection of the accused, in regard to his having broken open the front door of her house “just prior to the shooting and within three or four minutes of the shooting,” which took place at the rear of the house.
The statement per curiam is that the occurrence referred to was part of the res gestae, and we are not in a position to say that it was not; and whether it was or not, the evidence, as tending to establish the offense charged, was admissible. Knobloeh’s Crim. Dig. p. 173.
2. Accused testified that he visited the house of the prosecutrix on the night of the alleged offense upon the invitation of Rachael Pierre, one of her daughters, who admitted him. The daughter was called in rebuttal, and denied the truth of the testimony so given, whereupon accused produced a letter, purporting to have been written to him by her, whilst he was in prison, saying, inter alia: '
“The only thing could do you any good if I would tell I let you in the house that night 1 am afraid to. They were rong for ever saying anything to you that night”
—and asked her whether she had written it, to which she replied in the negative. Accused then, after the state had closed, asked leave to prove that the letter had been sent to him by the witness, and to prove the handwriting by experts and comparison, which request was refused, and the bill was reserved.
The statement per curiam included in the bill is, in part, as follows:
“While the offering of the evidence by the accused, in rebuttal of the state’s rebuttal, is a .matter left to the sound discretion of the court, the court would nevertheless have admitted the evidence had it not become convinced by comparison of handwriting that the letter was written by the accused himself.”
In assigning his reasons for refusing the new trial, however, the judge says:
“While the evidence adduced on the motion for new trial has changed the opinion of the court that the letter sought to be introduced in evidence was in the handwriting of the accused, instead of the witness Rachael Pierre, the court nevertheless feels constrained to refuse the motion for the following reasons: [The reasons given being (1) that the letter was in the possession of the accused before the trial and should have been offered before; (2) that the letter came into possession of counsel for the accused before the state had offered any evidence in rebuttal, and should have been offered before; (3) that there was no offer to put the accused back on the stand to prove that he had received the letter; (4) that the witness whose testimony was sought to be impeached was not a witness to the offense, but merely testified, as did other witnesses, to the attempt of the accused to break into the house, and to what was said before and after the shooting; (5) that there was ample evidence to warrant the verdict other than that of Rachael Pierre].”
It seems probable that, if tbe accused bad relied upon tbe letter in question to prove that be bad been admitted into tbe bonse of tbe prosecutrix, be would bave offered it as part of bis defense. Upon tbe other band, if tbe writer, in saying “the only thing would do you any good if I would tell I let you in that night I am afraid to,” was merely answering a request for assistance or making a suggestion as to tbe possibility of what might be done if she were not afraid to swear to an untruth, it can readily be understood why tbe letter was not offered. Tbe principal use, however, which the accused finally desired to make of tbe letter was to impeach tbe witness by showing that she testified falsely when she said that she bad not written it, and tbe serious question presented in the bill is whether the trial judge erred in refusing to admit testimony for that purpose. We are of opinion that this question should be answered in the’ affirmative. As was said in a ease decided a few years ago:
“A defendant is entitled at some period of the trial to discredit all witnesses brought against him.” State v. Spencer, 45 La. Ann. 10, 12 South. 135.
In the instant case it was shown to the satisfaction of the judge a quo, upon the hearing of the motion for new trial, and is
3. This bill states that counsel for the accused reserved a bill to the entire charge, and that he now specially urges that the judge did not instruct the jury that they might find accused “guilty of assault.” The judge says that no special instructions were asked, and that there was no evidence upon which a verdict of “guilty of assault” otherwise than “by shooting at” or with “a dangerous weapon” could have been found.
The bill is without merit. The court was under no obligation to give instructions that were inapplicable with respect to the evidence adduced. Knobloch’s Dig. p. 94; State v. Powell, 109 La. 733, 33 South. 748; State v. Matthews, 111 La. 966, 30 South. 48. An exception to an entire charge, without spei cifying any particular error, is not well founded. Knobloch’s Dig. p. 100.
Bills 4 and 5 present nothing requiring consideration.
For the reasons thus assigned, it is ordered, adjudged, and decreed that the verdict and judgment appealed from be annulled, avoided, and reversed, and that the case be remanded to the district court, to be there proceeded with according to law.
