27 So. 2d 324 | La. | 1946
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *539 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *540 Defendant, Webber Atwood, has appealed to this court from his conviction and sentence of death for the murder of Walter Mirl Timms.
During the proceedings in the court below, eight bills of exception were reserved.
Counsel for defendant challenged each of these prospective jurors on the ground that he had formed an opinion as to the defendant's guilt or innocence. A reading of the entire examination of each one of these prospective jurors discloses that each stated under oath that he had formed an opinion as to the guilt or innocence of the accused from reading articles in the newspapers or from discussions participated in or overheard. However, each stated that he had no fixed opinion, that his opinion would readily yield to the evidence, that he was not biased or prejudiced against the defendant in any way, and that, if selected and sworn as a juror to try the case, he would be guided by the evidence adduced at the trial and the law as charged by the judge.
Article
As each one of these prospective jurors did not have a fixed opinion, deliberately formed, as to the guilt or innocence of the accused or an opinion which would not yield to evidence or which could not be changed, we are of the opinion that defendant's challenge for cause in each instance was properly overruled by the trial court. State v. Henry,
On the examination of this prospective juror on his voir dire, given under oath, he testified that he was acquainted with both the deceased and the defendant, and that he was acquainted also with certain members of the deceased's family; that he had heard the case discussed but had not formed any opinion as to the guilt or innocence of the accused; that he was not biased or prejudiced *543 against the accused, and that the fact that he was acquainted with these parties would not influence him in his verdict in any way.
The law is perfectly clear, as set forth in Article
None of the four prospective jurors challenged for cause (which challenges were overruled) served on the jury which tried this defendant, each being challenged by the defendant peremptorily.
This challenge was admittedly made solely and only for the purpose of exhausting *544 defendant's peremptory challenges, and therefore presents nothing for review.
Counsel for defendant objected to both of these questions. Both objections were sustained by the court, and neither question was ever answered.
Counsel's objection is that the questions and answers sought were an attempt on the part of the State to put in evidence the character and reputation of the defendant which had not been put at issue by the defendant himself, and, further, were an attempt on the part of the district attorney to prejudice the jury by asking questions which necessarily called for such evidence.
The district judge having sustained counsel's objection to the questions, neither of which was answered by the witness who was under cross-examination, we are of the opinion that they did not prejudice the defendant in any way. State v. Curtis,
In State v. Curtis [
Moreover, in the instant case, although the district judge sustained the objection to the questions propounded, the first question may not have been improper, for, under the provisions of Article
With reference to the question "You do not want to be convicted of murder, do you", each and every juror knew that the defendant was on trial charged with that crime and knew that conviction of the crime charged without qualification carried with it the death penalty, and, although the question itself may have been irrelevant, it is equally true that each juror knew the answer. However, we do not think that this question put the character and reputation of the defendant in evidence or did him any harm or prejudice.
Mr. Harper, a deputy sheriff, was a witness for the State at the trial, and an excerpt of his testimony, which is incorporated in the motion and also attached thereto, discloses that he testified that on the morning of January 13, 1945, at about 8 o'clock, a few hours after the homicide had occurred, he, accompanied by a constable, located and arrested the defendant at the home of his cousin, Jefferson Atwood; that at this time the accused was undressed, in bed, and asleep, and the pistol *547 with which the homicide was committed was lying on the floor near the bed; that they awoke the accused, who informed them at that time that he had killed a man but that he did not know his identity.
Excerpts of the defendant's own testimony at the trial are also incorporated in the motion for a new trial and attached thereto. This testimony is to the effect that on the night of January 12, 1945, and in the early morning of January 13, the date of the homicide, the defendant had been drinking beer and some brandy, and that, after the shooting occurred, he placed the body of the deceased in an automobile belonging to the deceased, drove around for some time, and finally placed the body in a ditch, and that, upon his arrest by the deputy sheriff Harper, he informed him where the body of the deceased was and accompanied him to that place.
Counsel in his motion alleges that he will be able to prove by Mr. Harper upon a new trial that, when he located defendant at his cousin's home, he was obliged to shake defendant repeatedly in order to arouse him out of a drunken stupor, and that soon after the arrest defendant was placed in the parish jail by this witness, who would testify that the accused immediately sank into a deep slumber.
The motion further avers that the testimony is material and of great importance for the reason that it would account for the testimony given by the defendant in answer to questions propounded to him by *548 his own counsel and by the attorney for the State on cross-examination as to why he put the body of the deceased in a car and drove to different places, as to why he did not report the tragedy to an officer of the law, and as to why he was in the condition in which he testified he was after the tragedy, he having testified that the killing was an accident and that after the homicide he "went all to pieces".
The motion further sets forth that, during the time defendant was on the witness stand, all of these questions had been propounded to him, and he answered each one by saying that he did not know. Counsel avers that the testimony of the deputy sheriff could very well be accepted as a good reason why defendant did not know why he did the various things about which he was asked during his examination in chief and on cross-examination.
On the trial of the motion, the deputy sheriff, M. B. Harper, was called as a witness in behalf of defendant. At that time he practically repeated the testimony given by him when called as a witness for the State at the trial of the case. The testimony given at this time was that he and P. F. Reardon, a constable, arrested the defendant at the home of his cousin, Jefferson Atwood, and that at that time defendant was asleep and was awakened by his cousin; that some 30 or 45 minutes later the defendant was by these two officers incarcerated in the parish jail, and that some 30 minutes after this, when this *549 witness returned to the jail, he found the defendant asleep. He further testified that he could not detect the odor of liquor about the defendant, but that his movements indicated to him that the accused had been drinking and was under the influence of liquor.
In brief filed in this court, counsel for defendant states that the accused, Webber Atwood, does not claim that he was drunk at the time the deceased, Walter Mirl Timms, was killed and that by reason of such intoxication he could not have formed an intent or design wilfully to take the life of the deceased; that no such claim is made in the motion, and that it was never the purpose of the defendant or of his counsel in filing the motion upon the ground of newly discovered evidence to undertake to show that the accused was drunk at the time Timms was killed and that for this reason he should be excused from the crime even though he admits that he killed the deceased. Counsel states that no such claim is made in the motion and no such claim is made now, and that the sole and only purpose of this testimony is to show to the jury on a second trial that several hours after the homicide Atwood was in a dazed, drunk, sleepy, and comatose condition, and was in this condition 20 or 30 minutes after he was put in jail, and that this condition would explain his testimony to the effect that he went to pieces after the killing and would explain why he answered these questions by saying "I don't know". *550
Under the provisions of Article
A careful analysis of the testimony given by the deputy sheriff during the trial and of his testimony given on the trial of defendant's motion for a new trial discloses that the only new fact brought out by this testimony is that, some 30 minutes after the accused was placed in jail, he was asleep.
The witness, M. B. Harper, whose testimony to this effect counsel proposes to introduce in evidence in the event a new trial is granted, testified during the trial before the jury, and nothing prevented defendant's counsel at that time from examining this witness as far as he saw fit for the purpose of eliciting such evidence, and defendant is not entitled to a new trial on the averment that he has discovered new and additional evidence. State v. Walker,
If the defendant was so intoxicated after the homicide as not to know why he *551 put the body in the car and drove around for some time and as to why he did not report the tragedy to an officer of the law, and if such intoxication resulted in his answering questions on these subjects by saying that he did not know why he had acted as he did, then this intoxicated condition was known to him on the day of his trial, and he knew that this was the explanation for the answers so given, and for this reason this was not newly discovered evidence, being known to defendant all the while. State v. Cotten, 36 La.Ann. 980.
Furthermore, we are of the opinion that, even if the testimony of the deputy given during the trial of the motion revealed newly discovered evidence, such evidence was not material and would not have a tendency to disprove or explain the homicide, and is only a collateral fact having no material bearing upon the question of guilt or innocence. State v. Posey,
Moreover, the law is well settled that the granting of a motion for a new trial on the ground of newly discovered evidence is left largely to the discretion of the trial judge, and his refusal to grant such motion will not be reversed unless manifestly erroneous, and we find no error in the ruling complained of in this bill. State v. Heintz,
The jury which was selected and sworn to try this defendant slept two nights on mattresses placed on the floor of the courtroom, which was located in an upper story of the courthouse at St. Joseph, Louisiana, and due to the location of the courthouse counsel contends in the motion that the jury was not sequestered and removed from the reasonable probability of communication between it or some members thereof and outside parties.
In his per curiam the trial judge states that the jury was kept in the courtroom, or spent two nights there, for the reason that it was the only room available where such a body of men could be kept intact and together at all times. It is to be noted that this room was not used by the jury in its deliberations but merely as sleeping quarters for the members thereof.
The evidence taken at the trial of this motion discloses that the jury during these two nights was in the care and custody and under the charge of two qualified deputy sheriffs, that the jury never at any time separated, and that no communications were had with any outside party.
Counsel does not contend that the jury in this case was separated or that any member *553 thereof communicated with outside parties, but avers merely that, due to the location and situation of the courtroom itself, the jury was not kept sequestered and removed from the reasonable probability of communication between some member thereof and outside parties.
In State v. Robertson,
The holding in that case with reference to the sequestration of the jury during its deliberations is applicable to the sequestration of the jury in this case during the two nights in which it was quartered in the courtroom, for in this case, as in that one, there is no proof whatsoever that the jury communicated with any outside person, being at all times under the charge and in the custody of two competent deputy sheriffs.
For the reasons assigned, the conviction and sentence are affirmed.
*554KENNON, J., takes no part.