83 So. 844 | La. | 1919
The accused had been convicted of murder without capital punishment, and sentenced to the penitentiary for life.
He objected to going to trial, on the ground that four of his witnesses for whom summons had been timely placed in the hands of the sheriff were not present, and that no return had been made by the sheriff on the summons.
The judge says in his per curiam that eight or ten of the witnesses summoned by accused were present, and that accused had not used due. diligence by complying with Act 67, p. 78, of 1894, which provides that—
“In all criminal cases on final trial each side shall not be allowed to summon more than six witnesses, unless the district attorney or other * * * counsel, as the case may be, shall present a written application to the judge,” etc.
The bills 3, 4, 5, and 6 were reserved to rulings in connection with the acceptance or rejection of the jurors. 'The per curiams of the judge show them to be without merit; and counsel recognize that when the facts have not been taken down by the clerk as provided for by Act 113 of 1896 this court must be guided by the statement of the judge.
“What did Jack Coll [accused] tell you before the tragedy showing that he had hard feelings against deceased?”
The question was objected to as aimed at the opinion of the witness; but evidently its purpose was to prove some statement made
“Accused said that, if deceased did not quit interfering with his business, he would kill the old s-: of a b-
Another question objected to was:
“State whether or not the defendant was angry with Mr. Middleton [the deceased] because he (defendant) claimed that Middleton was interfering with his (defendant’s) business.’’
The manager of the distillery was asked:
“Mr. Dennee, I will ask you whether or not Mr. Middleton, in the course of his employment, reported certain irregularities at the still on the part of the defendant, and whether or not you had such occurrences with this defendant.”
“First, because it is irrelevant; second, because it is hearsay; and, third, because the statements in question were not in the presence of the accused.”
The judge in his per curiam says:
“The accused himself was permitted without objection to testify about the reports made to Mr. Dennee, the manager,' by deceased. Middleton was the man killed. He had reported irregularities to Dennee, the manager, and these reports evidently caused the killing. Mr. Den-nee in answer to the question merely stated the reports of irregularities were made to him by Middleton, the deceased, in the discharge of his duty, and then approached and conferred with accused about the matter. The witness never stated what the irregularities were.”
“I will ask whether or not Mr. Middleton tendered his resignation prior to this shooting?”
If this resignation was tendered just prior to the fatal encounter, and especially just after the deceased had been informed of the threat made by accused to kill him (and nothing in the bill shows that such was not the case), the fact of the resignation having been tendered would in itself, independently altogether of the words in which the tender was made, have a direct and most important bearing upon the vital question of who was the aggressor in the conflict, and therefore be neither hearsay, nor irrelevant, nor merely a statement made out of the presence of the accused.
Another question objected to was:
“Is it not a fact that the defendant here is. a much stronger man than the man. that waa killed?”
“was objected to for the reason, that defense examined the witness in chief, the prosecution cross-examined him, and the defense had re-' examined him and excused him, and that thereupon the district attorney propounded the question above. The testimony was also objected to on the ground that it was irrelevant, and was an effort on the part of the prosecution to prejudice the jury against the defendant, and furthermore it involves an opinion of the witness.”
“Accused is a man in the prime of life, and deceased was a man 72 years of age, and the evidence was that accused said to deceased, ‘X will take your pistol away from you and kill you with it, and thereupon grabbed deceased, and they tussled over the pistol, and immediately accused shot and killed deceased. The evidence had been elicited by counsel for accused that the accused and deceased were near the same size. The evidence was clearly relevant, and the court thought it proper testimony. The witness had not been excused at the time the question was asked.”,
“What did the deceased do or say to avoid the difficulty?”
To this question, says the judge in his per curiam—
“the witness answered that, when deceased went up into the distilling room, where accused had just shot a negro accidentally, and accused ordered him down, he turned and started down; that accused went up behind him and gave him a push, saying in effect, ‘Get down from here; did I not tell you not to come up here?’ and deceased answered back something he did not understand, but did not curse accused, and at the time of the killing deceased did not draw his pistol and did not curse accused. The court instructed the witness to state what deceased did say at the time in the presence of accused.”
Here again the question sought to elicit facts, and not mere opinion.
“What were you doing with the gun when you shot the negro?”
The judge in his per curiam says:
“The accused, Jack Coll, had stated in his testimony in chief that a very short while, an hour or such a matter, before the killing, he had shot a negro accidentally; hence the above question was to elicit other facts as to matter brought out by him and was admissible. The evidence had already shown that in his deportment that morning he was intoxicated and had his pistol out and accidentally shot a negro.”
We are not advised why the accused referred to this accidental shooting of a negro, but the inference must be that it was for some purpose in the case, and we must assume that the cross-examination was for counteracting that purpose.
Another question objected to was:
“Mr. Middleton was the head watchman, and had a right to go to all parts of the building, did he not?”
The following special charges were asked to be given to the jury:
“No word or gesture, however insulting, will deprive the person using the word or making such gesture of the right of self-defense when the latter has been assaulted in a manner that imperils his life.”
“If you find that the evidence is conflicting, and by reason of that fact you have a reasonable doubt as to what the truth is, you should solve such a doubt in favor of the defendant.”
The following also was asked to be specially charged, and was refused:
“It is riot every act or insulting word of a defendant that makes him an aggressor. This depends on the character of the act and intentions of the defendant. This is a fact to be determined by you.”
The learned trial judge says in his per cu-riam:
“This requested charge was not applicable in any respect to the facts of the case, but the court made the charge full and plain to the jury as to the aggressor and as to self-defense.”
The following special charge was asked to be given, and was refused:
“A man whose life is threatened is not required by law to avoid meeting his adversary, and he may go wherever he has a right to go, even though he knows in doing so he will meet such adversary.”
The judge states the reason for his refusal as follows:
“The above charge has no application to the facts of the case. Accused had threatened deceased, according to the evidence, and went to deceased when deceased was talking to another man and killed deceased without any overt act or word on the part of deceased. And the evidence did not show that deceased had ever threatened accused.”
Judgment affirmed.