7 So. 2d 177 | La. | 1942
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *902 The defendant was charged, tried and convicted of manslaughter. From the judgment of conviction, he has prosecuted this appeal relying upon ten bills of exceptions for a reversal.
The granting or refusing of a bill of particulars is a matter which addresses itself to the sound discretion of the trial judge. Articles 235 and 288, Code of Criminal Procedure. We cannot see that the Judge has abused his discretion by refusing the defendant's request in this case. Where the nature of the crime is such that it could only be committed in one place and by one act, *904
which creates a status making the corpus delicti easy of proof, the uniform trend of opinion is that it is wholly sufficient to charge the accused in the language of the statute and that he needs no information to put him on his guard in the preparation of his defense. Cf. State v. Larocca,
Complaint is made that the declaration of the judge in the presence of the jury panel that the defendant had not been diligent in securing the attendance of his witnesses had a tendency to prejudice his defense and prevented him from getting a fair and impartial trial.
We find no substance in this bill. The record reveals that the defendant was not diligent in subpoenaing the witnesses who lived in New Orleans insufficient time before the trial. Hence, the remarks of the trial Judge were not improper. Furthermore, if we should assume otherwise, it has not been shown that the jury was influenced by the statement of the Judge or that it had *905
any effect whatever on the verdict. This Court will not set aside a verdict because of improper remarks by the Judge or the District Attorney unless it is thoroughly convinced that the jury was influenced by such remarks and that they contributed to the verdict. Article
It is well established that, in offenses such as murder, where time is not of the essence of the crime, the State is not restricted in its evidence to the date set out in its indictment but is at liberty to show that the offense was committed at any time prior to the filing of the indictment. See State v. Barnhart,
Counsel for the defendant, however, maintains that this jurisprudence applies in murder cases only and that a different doctrine should obtain with respect to the crime of manslaughter. He suggests that the only reason why a variance between allegation and proof is permissible in murder cases is because that crime is not prescriptible and that, therefore, since the one year prescription *906 applies to the crime of manslaughter, the State should not be allowed to prove the death occurred upon a date other than that which is alleged in the indictment.
We find no merit in this contention. The crimes of murder and manslaughter are similar in their nature. They both relate to unlawful homicide. The only difference between them is that murder is perpetrated with malice aforethought, whereas, in manslaughter, malice is not a necessary element of the crime. The fact that manslaughter is prescriptible has nothing to do with the essence of the offense.
It appears from the record that the defendant had taken the witness stand in his own behalf and had denied the ownership of the offending weapon. He further testified that, prior to the shooting, there was a scuffle between a number of persons in the barroom where the killing took place; that, during this scuffle, a gun had dropped to the floor and that he had grabbed this gun and shot twice in order to protect his life. The State, in its rebuttal evidence, produced the *907 witnesses Milano and Trapagni who testified that the accused stated to them that he had been knocked down twice in the scuffle and that he came up shooting with a gun which he had taken from his vest pocket.
The District Judge states, in his per curiam, that this evidence was tendered for the sole purpose of refuting the statement made by the accused while he was on the stand. We think that this ruling was correct. The testimony was properly received in rebuttal of the defendant's evidence. It was not tendered for the purpose, as contended for by counsel, of impeaching the credibility of defendant or to show that he had confessed his guilt.
The record shows that, in the presentation of the State's direct evidence, this witness had testified that, although she was not an eyewitness to the shooting, she saw the defendant immediately afterward with a gun in his hand; that, when she saw him, she said "You have shot Claude" and that the defendant dropped the gun to the floor. The Court, over objection, permitted this witness to repeat this statement in rebuttal being of the opinion that it was offered to disprove the testimony of the defendant that he did not own the gun; that it had dropped to the floor during the fight and *908 that he had grabbed it and fired the shots in defense of his life.
While we do not agree with the Judge that this was rebuttal testimony, since the statement of Eva Boudreaux cannot be considered as refuting the evidence of the defendant with respect to the ownership of the gun, we cannot discern that the error in admitting it was prejudicial to the defendant. Article
The bill is not well founded. In the first place, we cannot view the statement of the District Attorney as objectionable. Moreover, the Judge charged the jury fully with respect to the weight to be attached to character evidence. The case of State v. Frazier,
1. Permitting Charles Trapagni, a witness for the State, to enter the jury room.
2. Permitting a newsboy to hand a newspaper to a juror.
3. Removing the jury to the jail for the purpose of receiving demonstrative evidence without the accused being present.
4. Depriving the accused of the right to have members of his own race (negroes) sit upon the petit jury.
The first ground for the motions, that Charles Trapagni, a deputy sheriff, was permitted to enter the jury room after he had testified, is not tenable. No objection was made by the accused and, in the absence of an objection and the reservation of a bill of exceptions, the alleged error cannot be considered by us either upon a motion in arrest of judgment or on a motion for a new trial. See State v. Oteri,
The second ground, that a newsboy handed a newspaper to one of the members of the jury during the trial, is likewise not well founded. It does not appear that the Court's attention was directed to the act of the newsboy by objection otherwise and, in the absence of an objection and an exception, the matter will not be considered on appeal.
The third ground for the motions is that, during the course of the trial, *911 the jury was removed from the courtroom to the jail in order that they might hear the ringing of a bell attached to the jail house. It is maintained by defense counsel that, at the time this was done, the accused was not taken with the jury to the jail house and that he was, therefore, deprived of his right to be present at all important stages of the proceeding and to be confronted with the witnesses testifying against him.
This alleged error falls within the same category of the first and second grounds of the motions which are discussed above. No objection was made by the accused or his attorney at the time the jury was taken from the courtroom and there is nothing in the record to indicate that the accused did not accompany the jury or that he was deprived of his right to be present at the time the demonstration was made. The right of an accused to be confronted with the witnesses against him and to be present at every important stage of the trial is one which can be waived either by the accused himself or by his counsel in his presence. See State v. Hutchinson,
Article 510 of the Code of Criminal Procedure provides: *912
"To avail as ground for a new trial, any irregularity in the proceedings, not patent on the face of the record, must be objected to at the time of its occurrence and a bill of exceptions be reserved to the adverse ruling of the court upon such objection. Failure to reserve a bill at the time of the ruling operates as a waiver of the objection and as an acquiescence in the ruling."
In the instant matter, if the accused was absent at the time the evidence complained of was taken, it does not appear on the face of the record, since the minutes of the Court disclose that he was present at the trial of the case. And, while it is true (See State v. Christian, 30 La.Ann. 367; State v. Ford, 30 La.Ann. 311; State v. Calvert, 32 La.Ann. 224; State v. Davenport, 33 La.Ann. 231; State v. Thomas, supra; State v. Futrell,
The last ground for the motions, that there were no negroes on the petit jury, discloses no merit whatever. The *913 record reveals that there were negroes on the petit jury panel and the mere fact that none of them was selected to serve in the case does not violate the constitutional guarantees respecting due process and the equal protection of the law.
For the reasons assigned, the conviction and sentence are affirmed.
The record discloses that the defendant, in testifying in his own behalf, had denied ownership of the gun which was used in the killing. He further stated that, prior to the shooting, there was a scuffle between a number of persons in the barroom where the killing took place; that, during this scuffle, a gun had dropped to the floor and that he had grabbed this gun and shot twice in order to protect his life.
After the defendant had closed his case, the State, in its rebuttal evidence, produced the witnesses, Milano and Trapagni. The prosecuting attorney was permitted, over the defendant's objection, to elicit testimony from these witnesses to the effect *914 that the defendant had admitted to them, at a time subsequent to the shooting, that he had been knocked down twice in the scuffle and that he came up shooting with a gun which he had taken from his vest pocket.
The main ground for the accused's objection is that the testimony was not rebuttal evidence; that it was sought to be admitted for the sole purpose of impeaching the credibility of the defendant as a witness and that it was, therefore, objectionable because the proper foundation had not been laid for its reception as required by Article
The Judge overruled the objection and admitted the evidence on the ground that it was tendered for the sole purpose of refuting the statement made by the accused while he was on the stand and was therefore, rebuttal evidence. We are now convinced that the Judge's ruling was incorrect. While it is true that impeaching evidence is receivable in rebuttal, it is not admissible unless the proper foundation has been laid. The statements of Milano and Trapagni were elicited for the sole purpose of affecting the credibility of the accused as a witness by discrediting his testimony that he did not own the pistol which was used in the killing. Any testimony with respect to facts contradictory of the accused's statement would have been properly received in rebuttal, but, before any evidence tending to show that the accused had made admissions divergent to his *915
statement on the stand could be admitted, he was entitled, under Article
For the reasons assigned, the verdict and sentence are set aside and the case is remanded for a new trial. The right of the State to apply for a rehearing is reserved.
O'NIELL, C.J., concurs and hands down an opinion.
Concurrence Opinion
In a criminal prosecution, proof of an admission made by the defendant, tending to incriminate him, is admissible, not merely to impeach his testimony if he has testified in the case, but also to prove his guilt. Statements made by other witnesses before the trial, inconsistent with their testimony on the trial, are only hearsay evidence, except for the purpose of discrediting the witness. Proof of such previous statements is not offered for the purpose of proving the fact or facts stated previously by the witness, but is offered for the purpose only of discrediting the testimony given by him on the witness stand. For that reason, the rule which requires that a witness shall be warned by *916
being asked about the alleged previous statement, to lay the foundation for his impeachment, is not so applicable to previous admissions made by a party to the suit, particularly a civil suit. There is a difference of opinion as to whether the rule is applicable to an admission made previous to the trial by the defendant in a criminal prosecution. The majority opinion seems to be that such admissions, although they may furnish of themselves proof of guilt, are not admissible for the purpose of impeaching or discrediting the defendant as a witness unless he is first warned by being asked about the admission, and is given thus an opportunity to make his explanation before proof of the admission is offered to contradict him. I am referring, of course, to proof of an admission that is otherwise admissible as rebuttal evidence, as in this case. I subscribe to the majority opinion because, although there is less reason for applying the rule to admissions made by a defendant in a criminal prosecution, than there is for applying it to previous statements made by other witnesses, nevertheless, proof of such an admission does tend to impeach the defendant as a witness, — whatever else it may do, — and for that reason it seems only fair that a defendant, as a witness, should have the same protection in that respect that is given to other witnesses. That view is supported by an expression in the opinion rendered in State v. Mahfouz,
"It is clear also that so far as the testimony was sought to impeach defendant *917 himself, it was irrelevant, since defendant was not a witness in the case, and, consequently, no foundation had been laid, orcould be laid, to impeach him." [The italics are mine.]
On this subject see Wigmore on Evidence, 3d Ed., Vol. IV, p. 8, § 1051 (1), concerning particularly the rule in civil cases; Jones on Evidence, Civil Cases, 4th Ed., Vol. 3, p. 1569, § 846 a; and on the subject generally, the same author; 2d Ed., Vol. 5, p. 3995, § 8126; and, for the rule in criminal cases, see State v. Clough, 327 Mo. 700,
"Proper foundation for impeaching witness by proof of prior contradictory statements or evidence given at former trial must be laid by asking witness if he made statement or gave evidence in question.
"This rule applies to accused as well as to other witnesses, provided the statements or evidence were voluntarily made, though accused may not be cross-examined on any subject not referred to in the examination in chief."
The limitations on the right of the State to introduce in evidence an admission of a defendant in a criminal prosecution tending to prove his guilt, in Louisiana, are stated in the Constitution; and the limitations on the right to cross-examine the defendant if he testifies in his own behalf are governed by the provisions in the Code of Criminal Procedure. Those provisions are not the subject of discussion in this case. *918