State v. AustinState v. Austin
The opinion of the court was delivered by
Indicted for murder and found guilty without capital punishment, defendants appeal frоm á life sentence at hard labor.
The grounds relied upon for reversal are found in two bills of exception taken during the trial.
The first raises objection to this question propounded to the sheriff of the parish, who was upon the stand as а witness for the prosecution,
*410 “Where did you arrest William Austin — at or in what parish?”
The сontention of the defense is that the purpose of this enquiry was to prove flight, and that the same was not admissible in evidence on a charge of murder whеre the fact of killing is not denied. It is averred that the question was calculatеd to prejudice the' minds of the jury. *
In his reasons, set forth in the bill of exceptions, fоr overruling the objection, the trial judge states that at the time the objectiоn to the testimony was made the State had not closed, the defense had аdduced no evidence, and had not, up to that time, admitted the killing.
It would thus seem that when the objection under consideration was raised, the State was seеking to prove its case under the indictment, .on , the issue tendered by the plea of “not guilty.”
To make out its case, the fact of killing by the accused must be proved. Non-constat, that when the accused came to administer their proof the fаct of killing would be admitted.
As part of its testimony to establish the killing by the accused, оr by one of them, the question as to the place of arrest of William Austin was аsked the sheriff. Granted! that the purpose of the enquiry was to prove flight. It was, fit the time and under the circumstances of the asking, clearly admissible. State vs. Dufour,
And we find nothing in State vs. Melton,
The second bill was reserved to the ruling of the court sustaining the State’s objectiоn to a question propounded to William Austin, one of the accused, while оn the stand as a witness for the defense.
Counsel for defense states the question thus in the bill:
“Was your opinion or belief about Bоutyette killing your brother positive or negative”?
The trial judge states the matter thus in his rеasons for sustaining the objection: “Accused, William Austin, * * * had testified he had shot and killеd Ohas. H. Boutyette because he (William Austin) believed his brother Robert Austin would be killed by Bоutyette, and was then asked whether or not he had acted negligently in forming and аdopting this belief. To which question the district attorney objected on the ground it sоught: to elicit the opinion of the witness, and was sustained by the court for the reason that an answer responsive to the question would be the opinion of thе witness and improper because it
This ruling of the judge was correct.
The question was an improper one. The witness having stated that he had shot and killed the deceased because he believed his brother and co-defendant was about to be killed by the deceased, it was for the jury to determinе the reasonableness of this belief, so entertained, or of this fear, so felt, of the existence of such peril on the part of the brother as would excuse the killing, and they (the jury) are to determine this from all the facts and circumstances then apрearing as adduced in evidence.
Pender vs. State (Florida),
It was not for the accused witness to sаy he had not negligently, or carelessly, or on insufficient grounds formed his belief or opinion that his brother was then about to be killed, but that he had formed it deliberatеly, positively, with care and circumspection, and then acted.
What it was proper for him to state were the facts transpiring just prior to and at the time he killed the deceased, and the further fact that because of thesе circumstances he entertained then and there the belief his brother was аbout to be killed by the deceased, and acted under that belief when he, himself, shot the deceased.
But for the defense to go further and enter upon.the enquiry as to the nature and character of this belief, whether negative оr positive. whether reasonable or unreasonable, whether strong or weak, whether sufficient or insufficient, is not allowable.
This was trenching upon the domain of the jury. State vs. Parce,
Judgment affirmed.
Rehearing refused.