74 So. 165 | La. | 1917
The defendant was indicted for the murder of John Drohan.
The first trial resulted in a mistrial. On the second trial, the jury found the defendant guilty of manslaughter, and recommended him to the mercy of the court.
The defendant filed a motion for a new trial, which, after a hearing, was overruled, and thereupon the defendant was sentenced to imprisonment at hard labor in the state penitentiary for not less than 7 years and for not more than 16 years.
The defendant has appealed, and relies for reversal on several bills of exception.
The bill relating to the competency of a certain juror has been abandoned.
The skull was the best evidence of the location and extent of the fracture, and was offered to correct any variance in the descriptions of the fracture by the physicians who testified on the trial of the case. The same skull had been produced in court on the first trial.
We know that this is the usual practice in district courts. The matter of separation of witnesses is one in the sound discretion of the trial judge.
On his re-examination the witness stated that on the occasion referred to he talked with Harrell in the presence of others, and if they got slightly apart from the crowd, he did not recollect it.
Defendant’s counsel objected to the witness stating any conversation he had with Harrell other than the private conversation referred to in the cross-examination. This objection was properly overruled. There was but one conversation, and evidence as to all that was said at the time was relevant and pertinent to the subject-matter of the cross-examination. Marr’s Orim. Juris, of La. p. 743.
The witness answered that on the former occasion the deceased was limber and on the last occasion, was stiff.
It is impossible for us on the meager showing made by the bill of exception to say that the testimony was immaterial and irrelevant. It may have been pertinent to some issue in the case. The judge ruled that the evidence was relevant and material, and the bill mere^
No evidence was offered on the trial of the motion for a new trial, hut several affidavits were filed therewith to support the grounds of newly discovered evidence.
The first ground is that Ered Crawford, the only eyewitness for the state, the day after the conviction of the defendant, stated to several persons:
“Well Red Bates was convicted, but ought not to have been.”
“Because he did not kill John Drohan, but I know who did kill him.”
This ground is supported by the affidavits of four men giving time and place of the statement. The motion for a new trial represents that Crawford on the next day disappeared for parts unknown.
The second ground is supported by the affidavit of one Murry Brumfild to the effect that Easley and Drohan were cursing each other, and Easley hit Drohan on the head with a quart bottle and knocked him down; that Drohan jumped up and they clinched, and both fell together; that Yarnado and the defendant went over to separate them; that both Easley and Drohan were drunk; and that Eendlason, the city marshal, picked them both up and put them in a car.
The last affidavit may be disregarded on the ground that the motion discloses no diligence whatever to discover the witness, and to secure his attendance on the second trial of the case. Moreover, the statements in the affidavit are contradicted by the undisputed testimony in the ease as shown by the following extract from the reasons assigned by the trial judge:
“All the testimony showed that John Drohan, the deceased, had been with a number of young men, including defendant, at or near a negro dance hall in the upper part of the town of Kentwood, nearly all afternoon; that deceased and Tom Easley, another youth, were in a fisticuff fight, with deceased on top beating Easley, when, this being reported to defendant, Bob Yarnado, .a deputy sheriff at that time, and several others, who were about 75 yards away, they went down there and separated them, or rather pulled Drohan off Easley.”
As to Ered Crawford, witness for the prosecution, the judge states that he testified that Drohan stood up and Easley remained on the ground; that Drohan said, “You Southern sons of bitches can’t run it over me;” whereupon Bates struck him a swinging blow on the head and he fell, and that Varnado and the defendant, close personal friends, who had been jointly charged before with felony, denied Crawford’s statement.
The judge further stated that the evidence recited by him showed that the fracture could not have been caused with the naked fist, and that the testimony convinced him, and convinced the jury, that the defendant struck deceased with some blunt instrument, which was unseen by any of the witnesses who could tell what it was, and thereby caused his death.
The judge stated that Crawford as a witness was hostile to the state; and his examination disclosed that on the trial of the ease he went back of his statement before the coroner’s jury, that the defendant had something in his hand when he struck Drohan.
The only legal effect of such statements is to impeach the credibility of the witness, and it is settled beyond controversy that a new trial will not be granted for. any such purpose. Marr’s Crim. Juris, of La. p. 830, note (c).
In a stronger case where a state witness
In this case we have the mere say-so of the state witness, who the next day “disappeared for parts unknown,” as alleged in the motion for a new trial.
Judgment affirmed.