144 So. 602 | La. | 1932
The defendant was charged with the murder of one Elmer Dunnington, and was convicted of manslaughter. His appeal brings up two bills of exception; of which, one is an application for a new trial, based solely on the alleged insufficiency of the evidence to convict, and therefore presenting nothing for our consideration; the other being a bill reserved to the refusal of the trial judge to admit evidence of the alleged dangerous character of the deceased.
This rule has now been made statutory. The Code of Criminal Procedure (Act No. 2 of 1928) provides:
"Art. 482. In the absence of proof of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible." (Italics ours.)
And: "Mere evidence of such threats [hostile demonstration] as distinguished from *875 proof thereof, is insufficient." State v. Sandiford,
However, "it is also well settled that, if a trial judge, after hearing the testimony offered in support of the accused's contention that deceased was guilty of hostile demonstrations or an overt act, decides that no overt act was committed, his ruling on that question is subject to review by this court on appeal." State v. Brown,
It was the night before the election, a primary election for a high state office; wherein X and Y were candidates. The accused and his uncle, one Milton (Red) Bates, were supporters of X; and the deceased, Elmer Dunnington, was supporting candidate Y. But the merits of the election itself were not involved in theargument; there was no discussion about the issues of the campaign; nor were the qualifications of the candidates in dispute at all. The only matter about which there was any difference and controversy *876 was simply — whether Bates had a man, a supporter of X, to wit, this accused, who could "whip" any supporter of candidate Y. But neither Bates nor Dunnington, the principals in the briefargument which ended so disastrously, will ever know who was right and who was wrong on that score; for both have now gone where such matters are only of minor importance, if of importance at all.
Dunnington, after having his coffee, left the restaurant, but remained outside. Twenty minutes later Bates and Bridges came to the restaurant, where they also had coffee; and where Bates endeavored to place a bet on the result of the election, but was unsuccessful. Bates and Bridges then left the restaurant; but, instead of going towards their own parked car, they went in theopposite direction, towards Dunnington, who was still standing near the entrance to the restaurant.
It was then, on approaching Dunnington, after having previously stopped his nephew's attempt to follow Dunnington, that Bates *877 remarked, addressing himself to Dunnington, that he had a supporter of X, "who could whip any Y man in the crowd"; for there were some persons gathered on the street. And it was then that Dunnington answered that he (Dunnington) "was a Y man, and there was no one there who could whip him."
Some words followed between Bates and Dunnington, but no one seems to have heard them; and Bridges, this accused, was then standing apart from them. Then Bates advanced on Dunnington, cursing and exclaiming to the bystanders, "Get back; and I'll show him," whilst Dunnington said at the same moment, "Get back; this is my affair." And the evidence is all but conclusive that Bates, with an "automatic" in his hand, fired three times into Dunnington before the latter fired at all.
Then the firing became general; with the result that, when Bates ceased firing because the magazine of his "automatic" had been emptied, he lay mortally wounded near the curb, struck once in the groin and once in the ankle by bullets from Dunnington's revolver; a third bullet going astray as Dunnington stumbled towards him and fell over him, dying; with the stock of his "pearl-handled, nickel-plated" revolver shattered, and seven bullet wounds in the front of his body —; also six more in hisback — these last put there by this accused, after the firing between Bates and Dunnington had ceased; his explanation (to the night marshal who arrested him) being, "I had to do it. He was killing my uncle."
And there is also evidence that Bridges, this accused, was evensupporting Dunnington as he was stumbling forward — and perhaps even then firing into Dunnington's back. And there is evidence that Bridges fired into Dunnington's body even as he lay dying across the uncle's body.
O'NIELL, C.J., concurs in the decree because there was no evidence that Dunnington was the aggressor, and hence no issue as to who was the aggressor in the fatal difficulty. *879