State v. Dudoussat

47 La. Ann. 977 | La. | 1895

Lead Opinion

The opinion of the court was delivered by

McEnery, J.

The accused was a member of the Oity Council of New Orleans. One Sherman had pending before the Council an application to be permitted to open a barroom in his place of business. The aecused made a proposal to him that for one hundred dollars he would secure him the privilege asked for. Subsequent to this proposal, Sherman, O’Malley, Sergeant Aucoin of the police force, and some newspaper reporters arranged a plan to entrap the accused. The plan was successful. Marked money, to the amount of one hundred dollars, was tendered to the accused, in response to his proposal, by Sherman, and he accepted it.

The other parties were secreted and witnessed the transaction. There is a contention that Sherman was an actual accomplice, and not a feigned accomplice.

The judge’s charge to the jury, and the admission of testimony, were based on the theory that the witness and prosecutor, Sherman, was an apparent or feigned accomplice. This question is disposed of in the discussion of bill No. 2. We will, as we have ascertained from the evidence in the record that the man Sherman was a feigned accomplice, treat him in discussing the following bills as an ordinary witness.

Before doing so, however, we will notice that part of defendant’s complaint to the inconsistency of the judge’s instructions to the jury.

In one part of the charge the trial judge says that if the giver of a bribe acted merely with a view to secure the detection and conviction of the accused, and the latter accepted the bribe with the intent to be influenced thereby, he is guilty, and the other part of the charge is that the State must establish beyond a reasonable doubt, all the material averments in the indictment, to-wit: * * * “That the defendant, a member of the City Council and a municipal officer, in such capacity, received one hundred dollars from Sherman as a bribe, present aud reward, which was corruptly given to him by said Sherman.”

Here were two charges on two different theories of the case, one by the State, that Sherman was a feigned accomplice, and the other by tbe accused, that he was an actual accomplice under the averments of the indictment. We think the charge is not objectionable; certainly, it did the accused no injury, as it was based on the theory of his defence.

Bill No. 1 in the record has reference to the testimony of one Henry Lochte. Considering Sherman to be an ordinary witness, Lochte’s testimony is objected to on the ground that it was the statement of a collateral fact, and in no way connected with the act of bribery committed on the 29th of August, 1894, and in no way tended to confirm the testimony of Sherman, and was irrelevent and heresay.

The testimony of this witness is to the effect that some five days prior to the date of the offence with which the defendant is charged, Sherman, the prosecuting witness, said to him that the defendant wanted one hundred dollars to get him, the witness, a permit to run a barroom in his place of business; that he told the witness that the proper place for him to go was before the grand jury. Sherman said he would go, but he first wanted to get his permit. After the arrest of defendant, he saw Sbarman in company with one O’Mally at his store, and the visit of these men was to see about the proposition made to him by Dudoussat.

For the admission of this testimony the trial judge assigned as a reason that fabrications, improper motives and prevarication had been imputed to the witness Sherman,’and on the ground that Sherman was an apparent accomplice, he permitted the testimony to be received to confirm the statements of the witness Sherman, which had been assailed, those statements being prior to and were similar statements made by the witness, and made at an unsuspicious time.

“ Where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, it is but proper that such evidence should be rebutted.” Whart. Crim. Ev., Sec. 192.

The case of State vs. Cady, 46 An. 1347, sustains this doctrine. In this case the general character of the witness was not attacked for truth and veracity, but particular facts were charged as false and fabricated. Hence it was competent to show that at a time unsuspicious he made similar statements as to the facts contradicted.

But we think under the facts of this case the evidence was material and important, and had direct bearing upon the issues presented, and were, in fact, a part of the transaction, to understand which it was essential that these facts should have been narrated.

If the “trap ” prepared and arranged by the witness Sherman, O’Malley and certain newspaper reporters and a sergeant of police, to procure evidence of bribery against the witness stood alone, it would at once appear that it was an inducement, an opportunity offered, and a temptation presented to commit the crime. The defendant, under such a. state of facts, would have been entitled to a verdict of not guilty.

It was essential therefore to show that the defendant proposed to commit the crime, and the means employed were not used as an inducement or temptation, but for the purpose of securing the evidence. From the testimony embodied in the bills of exception it appears that the defendant had made up his mind to commit the of-fence., and had made a proposition to the witness that for one hundred dollars he would, in his official capacity as councilman, procure him a permit to conduct a barroom. The application for the license was pending whon the trap was laid. These matters had been sworn to by Sherman. They were contradicted as being fabricated. There can be no doubt, therefore, that prior statements similar to those made on the trial, made at an unsuspicious time, were legal and competent testimony, and were, in fact, a part of the transaction necessary to disclose, in order to convict the defendant.

We are not disposed to commend the means employed in this particular case, and, under the circumstances, they were of such character as to leave but little discrimination between prosecutor and accused. The defendant might have escaped disgrace if the opportunity had not been presented. But he had proposed to commit the crime, and seized the opportunity presented to do so.

Bill No. 2 was reserved to a portion of the written charge, and is to the effect that the charge was erroneous, as it did not instruct the jury, that to constitute the crime of receiving a bribe there must co-exist on the part of the giver and receiver of the bribe a corrupt intent — one to influence the other, and the other to be influenced to vote or to exercise official power or perform official duty with partiality or favor. The bill, in effect, denies that there can be a feigned accomplice in bribery, and, therefore, the theory upon which the conviction was had is incorrect. The indictment charges as though the prosecuting witness was an accomplice. The charge as to him may has been groundless; he may be innocent of the charge, but the question is, was the charge properly made against defendant. In other words, could he commit the crime of bribery without the co-operation of the defendant? Was the joint act of both necessary?

The statute defining the offence is in the language of the article of the Constitution. It has a dual capacity. It charges two acts, and affixes to them the same designation and gives the same description, and imposes the same penalty; yet they are each distinct offences.

An analysis of the article of the Constitution and Act No. 78 of 1890 will show that it is made an offence to give a present or reward to any officer of the State or of a municipality with the intent to influence him in the discharge of official duty. Any officer so receiving such reward or present is also charged with the same offence — bribery. They are intimately associated, it is true, and the words so receiving would at first reading incline one to the opinion that there necessarily must be co-existent the giving and taking with the intent charged in the statute. The giver may tender with the intent to corruptly influence, and the acceptor may receive without such intent — the present or reward. Unquestionably, the giver would be guilty of a violation of the statute. And so the acceptor may take a present innocently tendered, yet if it should be proved that it influenced his official action, he would also be guilty of a violation of the statute.

We are of the opinion that the statute does not require a mutual or reciprocal agreement to commit the crime of bribery.

Bill No. 3. After the judge had charged the jury, twelve additional special charges were tendered to him, which he refused, and gave his reason for refusing each special instruction. Special charge No. 1 was refused because the trial judge had in substance given the same in his general charge. This was sufficient. When he correctly announces the law in his own language, he is not required to give the same instructions to the jury in the language of counsel.

Nos. 2. and 3 have been passed upon by this court, and No. 4 has been passed upon in this opinion. The refusel to charge as requested in No. 6 is stated by the judge to be that he had already charged that there was a marked distinction between artifices used to detect persons suspected of being engaged in criminal acts and means used to tempt those to commit such acts. In his charge, the judge stated, “it is legitimate to adopt such measures as may be deemed necessary to detect crime, provided the means used do not amount to a practical inducement or solicitation to commit it.” This instruction is supported by the authorities. Under the evidence introduced it was competent for a jury to determine whether the accused was a feigned or an actual accomplice. The record shows all the facts necessary to form a conclusion on this point went to the jury. The special instruction, therefore, was properly refused. No. 7 is practically the same as above. Nos. 8, 9, 10, 11 and 12 relate to the corroboration of the testimony of accomplices, which has already been disposed of. The general charge in all matters referred to therein, and to which the special charges alluded, covered all the. matter, not so much in detail, but sufficiently in substance, to intelligently inform the jury of the law applicable to the case. Those which were refused have’been fully discussed herein, sustaining the trial judge in his ruling.

Bill No. 4. The defendanf asked a witness: “ What did Sherman, the prosecuting witness, or one of the witnesses of the State, say about his father and mother,” to show that the prosecuting witness was not named Sherman, but that he had assumed said name to cover up his idendity and to discredit his general reputation. The question was objected to by the District Attorney and the objection sustained. 'The evidence was irrelevant and immaterial, and the ruling was correct.

There is nothing in the motion for a new trial to attract our atten - tion except the oral instructions of the judge to the jury, who came into court, on failing to agree, and these oral instructions were then given. The counsel for the accused were not present. They were looked for but could not be communicated with. It was not essential that they should have been present.

It appears that in the early stage of the case the attorneys for the defence had requested a written charge. This was given as requested. When the jury returned into court, in the absence of a bill of exception reciting the oral charge, we will presume that the judge only reiterated what was in his written charge.

It does not appear that any instructions as to the law in the case were given to the jury.

The oral instructions were simply in reference to the jury’s inability to agree upon a verdict. The judge told the jury that it was exceedingly desirable that they should agree as soon as possible, and that the court had no desire to coerce them; that jurors were sometimes stubborn and held out to the end, assigning no reasons for their stubbornness; that he hoped the jury possessed no such feeling. Some jurors might think it humiliating to yield their opinion, but they should listen to the views of others and arrive at an honest verdict. If it were an ordinary case he would order a mistrial, but as the case was one of importance he would not do so without mature deliberation. We fail to perceive any coercion of the jury, or any wrong inflicted upon the defendant, or any reason why there should be a new trial because of the absence of defendant’s counsel at this interview between judge and jury. State vs. Green, 7 An. 518.

If a case should occur where the trial judge should force a verdict against the accused by prolonging the deliberations of the jury beyond a reasonable period, imposing upon them physical suffering and endangering their health, it will be time for an expression of opinion as to the relief prayed for by the defendant. The instant case affords no opportunity for an expression of an opinion on this subject.

The witness, Sherman, was indicted as an accomplice. The defendant’s counsel urge that this operates as an estoppel, and the State can not deny that fact, and that the introduction of evidence and the rules applicable to the same must be governed by this fact.

We know of no law which applies the doctrine of estoppel in criminal trials. The State might indict A for the murder of B. A might be acquitted. This would not estop the State from punishing 0, the real criminal.

Judgment affirmed.

---

Concurrence Opinion

Concurring Opinion.

Miller, J.

The defendant contends the lower court erred in permitting the testimony of Lochte to go to the jury as corroborative of that of Sherman, who had testified to the defendant’s guilt. It is urged on us that the corroborative testimony was as to an important point, and had no tendency to sustain any testimony of Sherman as to the guilt of the prisoner. It is, we presume, conceded the testimony received was of that species of corroboration admitted in the case of the ordinary witness whose veracity has been assailed. 1 Greenleaf on Evidence, Sec. 469; 1 Roscoe Criminal Evidence, S. P. 185 and note. Such corroboration is excluded in the case of the accomplice, and that exclusion we applied in the Callahan ease (47 An. 444). 22 Pickering, 397; 127 Mass. 424. The defendant’s contention is, Sherman was an accomplice, and hence the same rule applied in the Callahan case is to be enforced here. It is insisted the indictment treated Sherman as an accomplice. By this is meant the indictment against defendant charged the bribe was given by Sherman. But this, in our view, did not exclude testimony he was a feigned accomplice. So, again, in portions of the charge Sherman was treated as an accomplice. But it is none the less true, that testimony tending, to show his complicity was only feigned, was submitted to the jury, and, notwithstanding the charge, is can not be denied that the complicity of Sherman, whether feigned or not, was an issue for the jury. It is manifest, that in order to treat Sherman as a guilty accomplice, we must determine the issue of fact, and without such determination, the rule of the Callahan case can not be applied by us. We have no power to deal with the issue of fact. Constitution, Art. 81. My conclusion is, we can not apply a rule of exclusion of testimony, when, as in this case, the application of that rule involves an issue completely withdrawn from our jurisdiction. The difference is obvious between this and the Callahan case. There it was conceded the witness to be corroborated was an accomplice in the fullest sense. The law exacted a certain kind of corroborative testimony and prohibited any other. We enforced the law. Here, the guilty complicity of Sherman is put at issue by argument and testimony laid before the jury. The distinction between the accomplice and feigned complicity is recognized. When a feigned accomplice, the corroboration is not that required to sustain the credit of the ordinary accomplice. 1 Greenleaf, Sec. 882. This disposes, in my opinion, of the defendant’s first bill.

On another point exhibited by the bills, in my view, the Act No. 78 of 1890, as to bribery, is divisible as to the offence of bribery. The party who receives a bribe with the corrupt intent defined in the statute is guilty, irrespective of the intent of the giver. In my view, the statute plainly marks the distinctness of the offences. I think, in this respect, there was no error in the charge of the court.

The other questions arising in the ease are discussed in the opinion of Mr. Justice McEnery.

I concur in the decree.

---

Dissenting Opinion

Dissenting Opinion.

I.

Watkins, J.

The first objection, I think well taken by defendant’s counsel, is that which relates to the admissibility of the testimony of Henry Lochte. It was offered on the part of the State for the avowed purpose of confirming the truthfulness and general veracity of one Charles Sherman, the only witness by whom the 'corpus delicti was proven. This testimony was offered in rebuttal, after the close of the defendant’s evidence; and by it, the State proposed to show that Sherman had made to him, Lochte, on several occasions prior to the defendant’s commission of the crime charged, similar statements to those he had made in the course of his examination in chief as a witness.

To this testimony the defendant’s counsel objected on the following grounds, viz.:

1. That the witness’ testimony did not tend to corroborate the veracity of Sherman; and that for that purpose it was incompetent, immaterial and inadmissible.

2. That it was hearsay, irrelevent, and made out of the presence and hearing of the defendant.

3. That it was inadmissible for the purpose of sustaining and confirming the truthfulness of Sherman, because it does not tend to confirm his testimony upon a point material to the issue, in the sense that it tends to prove the guilt of the accused, or to connect him with the commission of the crime charged.

4. That the testimony of Sherman proves that be is an accomplice of the accused.

These objections having been overruled, and the testimony permitted to go to the jury, the counsel for the defendant excepted and reserved a bill of exceptions.

The judge assigned as his reasons for admitting the testimony: (1) That it was competent for the State to establish by the testimony of a disinterested third person that Sherman had told him that the defendant had agreed to obtain for him a barroom privilege for one hundred dollars; (2) that the statement of Sherman to Lochte was made 'four days previous to the alleged crime — at a time not suspicious; (3) that improper motive, recent fabrication and prevarication were imputed to the witness, Sherman, on the trial of the case; (4) that the evidence adduced showed, at most, that he was only a feigned accomplice; (5) that, in his opinion, it was competent to show by the witness, Lochte, that Sherman had stated to him that the defendant had proposed to be bribed in the manner by him related as a witness, several days prior to his actual commission of the crime charged — in'other words, to show by the witness, Lochte, that Sherman had made a prior similar statement to him before the existence of his imputed purpose to'misrepreseut.

The purport of the judge’s ruling is, that the witness, Sherman, was not a guilty, but a feigned accomplice, uninfluenced by any criminal intent, in so far as any participation'in the crime was concerned. That improper motive, recent fabrication and prevarication were imputed to him on the trial, and it was competent to show, by a disinterested third party, that he made a prior similar statement at a time not suspicious.

The interrogation and responses of the witness, Lochte, are as follows:

Q. Was there any conversation at the time with reference to his (Sherman’s) petition for a license to operate a barroom?

A. Yes, sir.

Q,. What was it that passed between you in that conversation?

A. Mr. Sherman told me that Mr. Dudoussat wanted one hundred dollars to get him a permit to run a barroom at his place of business.

Q. Did you say anything to him?

A. I told him the proper place for that was for him to go before the grand jury.

Q. What was his answer?

A. He said that he would, but he wanted first to get his permit.

Q. That he would go, but that he wanted first to get his permit?

A. Yes.

The following is a portion of the interrogation and responses of Sherman in the course of his examination in chief, viz.:

Q,. What was this one bundred dollars given to him for?

A. To have him get my, barroom privilege, sir.

Q. Did you know what position he occupied?

A. Well, I could not say what his position was. I thought I would give him this one hundred dollars for the privilege for my barroom.

Q. Did you know whether he held any office?

A. Yes, sir; Mr. Dudoussat.

Q. What office did you know he held?

A. He was a council in the Oity Hall; a councilman.

Q. Did he make any promise with reference to your ordinance?

A. Yes, .several times.

Q,. What was it he promised to do?

A. That he would get me my barroom privilege.

Q. Did he require you to do anything for the passage of the ordinance?

A. Yes, sir.

Q. What?

A. He told me that if I gave him one hundred dollars it would be all right, and the privilege he would get.

Q. That was the reason you gave him the money?

A. Yes; and he said he would work for it.

Q,. He would work for what?

A. Work to get my barroom privilege from the council.

Q,. For one hundred dollars?

A. Yes, sir; and I paid him for it.

The foregoing is quoted from the examination in’chief of the’witness, Sherman, on the part of the State, and with this statement his examination was closed, and he was surrendered to the defendant’s counsel for cross-examination; and we make the following extracts therefrom, viz.:

Q. You know that place very well, the Jackson Brewery, don’t, you?

A. Yes, sir.

Q. How many times have you been there?

A. Four or five times.

Q,. For what?

A. To see Mr, Dudoussat.

Q,. When did you go there to see Mr. Dudoussat?

A. I can’t say.

Q,. Was it before or after the first petition was presented to the council?

A. Yes, sir.

Q. Before the first petition was presented?

A. Yes, sir.

Q,. Did you have any ice-box belonging to the Jackson Brewery?

A. Yes, sir.

Q. Didn’t you go there to see about that ice-box?

A. Yes, sir.

Q. How many times did you go there to see about the ice box?

A. I went there two or three times, because I was taking the word of Mr. Dudoussat that he was going to get my privilege, and at the same time to make a short cut about my ice box.

rf* tff «ft

Q. That was before you saw Mr. Dudoussat — before you saw him at all ?

A. No, sir; I saw Mr. Dudoussat before that, at my grocery.

Q- Before the first time that you went to the Jackson Brewery?

A. Yes, sir.

The witness, Sherman, then states all the circumstances of his visit to the Oity- Council for the purpose of seeing Mr. Dudoussat with regard to the passage of the city ordinance granting him a barroom privilege; and, also, the circumstances of the payment of the money to the defendant, stating that the plan was formed on the day before the payment, to entrap him, and capture him with the money in his possession.

On this state of facts, and at this stage of the trial, had the State a legal right to introduce Lochte as a witness, in rebuttal, and, by his testimony, seek to sustain the truthfulness of Sherman ?

That; must necessarily depend upon whether he was a guilty or a feigned accomplice; for, if a guilty accomplice, the rule of exclusion, which was recognized in the Callahan case, should prevail.

Lochte’s statement was “that Sherman told him that Mr. Dudoussat wanted one hundred dollars to get him a permit to run a barroom at his place of business;” and Sherman testified that Mr. Dudoussat “told him that if he gave him one hundred dollars it would be all right, and he would get his barroom privilege ? ”

It is apparent that this statement of Mr. Dudoussat to Sherman was competent testimony, but it is equally evident that the repetition of that statement by'Sherman to Lochte was the plainest kind •of hearsay, as the statemeat was made out of the presence and hearing of the defendant. It is equally evident that it constituted no part of the res gestee, because the conversation took place four days previous to Sherman’s alleged payment of the money to Mr. Dudoussat, and three days previous to the arrangement which is alleged to have been made to entrap him.

“Res gestee are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants narrating the events.

“ What is done or said by participants, under the immediate spur of the transaction, becomes thus part of the transaction, because, then it is the transaction that thus speaks. In. such case it is not necessary to examine as witnesses the persons who, as participators in the transaction, thus instinctively spoke or acted,” etc. (My italics.) Whar. Orim. Ev., Sec. 262.

“ The distinguishing feature of declarations of this class is, that they should be the necessary incidents of the litigated act, necessary in this sense, that they are part of] the immediate concomitants, or conditions of such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act, and become part either of the action immediately producing it, or of the action it immediately produces.” Ibid., Sec. 263.

But it is answered on the other side, that improper motive and recent fabrication of evidence against the defendant, and prevarication had been attributed to the witness, Sherman, on the trial of the case, and this entitled the State to sustain his character for veracity and truthfulness by introducing in rebuttal the testimony of a disinterested third person, to show that he (Sherman) had made to him a prior similar statement before the existence of his imputed purpose to misrepresent.

The defendant’s counsel invoke their objection that Sherman is the guilty accomplice of Dudoussat, and for that reason his truthfulness can not be sustained by any testimony which does not tend to confirm his statement upon a point material to the issue in a sense that it tends to prove the guilt of the accused. To this, the reply of the prosecution is that, as the judge assigns, “the evidence adduced showed, at most, that Sherman was a feigned accomplice,” and for that reason the rule applicable to sustaining the veracity of an ordinary witness applied.

Let me see, first, what that rule is:

What was the character of Sherman’s impeachment which rendered sustaining evidence necessary?

The trial judge states, in his reason for admitting the objected testimony of Lochte, “that improper motive, recent fabrication and prevarication were imputed to Sherman on the trial.”

Imputed to him, when and where?

By the testimony of Dudousat, as a witness in his own behalf. No other means of imputation are anywhere suggested. When Dudous■sat went into Sherman’s grocery he went alone. No one other than he and Sherman participated in the transaction respecting the payment of the money. All of Sherman’s confederates were upstairs, in a place for observation. Consequently there was, in the nature of things, no one other than Dudoussat in a position to impute to Sherman a recent fabrication of this story.

Is it true, as matter of law, that defendant’s mere contradiction of Sherman’s story, authorizes the introduction of hearsay testimony to sustain the truthfulness of his statement?

If so, then the defendant occupies an unfortunate situation; for, if he stands mute in the presence of his accusers, the impression of guilt is created against him, and if he denys their accusations, hearsay evidence becomes admissible as proof of guilt, by indirection.

Mr. Wharton says that a mere conflict of testimony, however, will not justify the introduction of evidence to back up the witnesses’ statements thus conflicting. Nor can such testimony be received * * * merely upon proof of prior conflicting statements of the witnesses.” Whart. Orim. Ev., Sec. 491.

That statement is in keeping with the jurisprudence of the country on the subject. State vs. Ward, 49 Conn. 429; Starks vs. People, 5 Denio. 106; Johnson vs. State, 21 Ind. 329.

The rule of exclusion not only applies to hearsay, but to any evidence. It goes to the extent of rendering any sustaining evidence inadmissible under that state of case.

Mr. Wharton fully explains the rule thus, viz.:

“When a witness is assailed, on the ground that he narrated the facts differently on a former occasion, while on re-examination it is competent for him to give the circumstances under which the narration was made, it is ordinarily incompetent to sustain him, by proof, that on other occasions his statements were in harmony with .those made on the trial.” Ibid., Sec. 492.

But such is not the claim made in this case, but it is claimed “ that improper motive and recent fabrication and prevarication had been imputed to Sherman on the trial of the instant case. Let that be conceded, and what is the rule? On this question Mr. Wharton says: “On the other hand, when the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, it is proper that such evidence be rebutted;” Ibid., Sec. 492.

But it must be observed, that the author does not say that such impeaching testimony can be rebutted by means of hearsay evidence, as the State was permitted to do in this case. The contrary appears clearly from the illustration he gives. That when a witness on the trial of a case of perjury was shown to have made a false statement as a witness on the previous trial of a case of arson, “it was held, that as he had been thus discredited he might be sustained by showing that he had made to C., immediately after the arson, a statement in harmony with that made by him on the perjury trial, though the particulars of the statement were inadmissible.” Ibid., Sec. 492.

So, the rule permits a witness thus attacked to be sustained by proof of the fact that he had previously made “ a statement in harmony ” with his statement on the trial; but it excludes “the particulars of the statement,” as wholly inadmissible.

To this effect is the statement of many decisions and text writers. Taylor’s Evidence, Sec. 1330; 2 Phillips’ Evidence, Sec. 445; 1 Starke’s Evidence, 253; 3 Russell on Crimes, 593; Henderson & Jones, S. and R., 410; Cook vs. Curtis, 6 H. & J. 86; Solp vs. Blair, 68 Ill. 453; Coffin vs. Anderson, 4 Blackf. 395; State vs. Vincent, 24 Iowa, 570; State vs. George, 8 Iredel, 324; March vs. Hassel, 1 Jones, 329; People vs. Doyell, 48 Cal., 85.

Indeed, I am not aware of any well considered case in which this rule has been extended.

This question has been examined, and the rule, as announced by Mr. Wharton, maintained by this court.

In State vs. Guillory, 47 An. 31, quite a similar case was presented, and hearsay evidence was held inadmissible, for the purpose of sustaining the veracity of a State’s witness, whose testimony has been impeached; and this court said that the reasons of the trial judge were “insufficient to justify this radical departure from elementary principles, in permitting the introduction of hearsay evidence.”

The question was dislinctly affirmed in State vs. Callahan, 47 An. 455.

So much for the admissibility of hearsay evidence to sustain the credibility of Sherman, as an ordinary witness. But defendant’s counsel insist that he was a guilty accomplice, and that the rule of exclusion adopted in the Oallahan case should be applied; while on the other hand it is insisted that he was only a feigned accomplice.

The discussion of this question resolves itself into two propositions, (1) that, whether Sherman was a guilty or a feigned accomplice, was a question of fact for the jury to decide after hearing all the evidence, and not one of law for the court; (2) that, if it be one of law, primarily, for thejcourt to decide, the record and the testimony that is annexed to the bill of exceptions demonstrate that Sherman really sustained the relation of a guilty accomplice to the accused, and that the judge committed error in admitting the evidence of Lochte to sustain?his veracity as such.

(a) That it is a question of fact, the judge’s assignment of reasons attest, for it relates that “ the evidence adduced showed, at most, that Sherman was a feigned accomplice” — showing that he predicated his ruling on evidence adduced at the trial.

I am not aware of any opinion of this 'court in which this question has been decided, henee I will [refer to,[the decisions of other courts as controlling the question in dispute.

In State vs. McKean, 36 Iowa, 343, a question arose in reference to the following charge to the jury, viz.:

“If, at the time of taking the horse, he was actuated by or possessed of such felonious intent, he was then to be regarded as an accomplice; but, on the other hand,[if you are satisfied from the evidence that Meeks intended from the beginning to act the part of the detective, to ferret out and make ¡known the crime and secret frauds of the defendant and others, then he is not to be regarded as an accomplice.

“ The question of whether Meeks was an accomplice or a detective is important, and must be by you determined. * * *

“It is a question of fact which you are to determine from the evidence.”

After making a careful examination of the authorities, the Iowa court said:

“ We do not see how we can interfere[with either the action of the court or jury.”

The court cited inter alios Rex vs. Despard, 28 Howell’s State Trials, 346, in which Lord Ellenborough, in summing up, said:

“ But there is another class of persons which can not properly be considered as coming within the description, or as partaking of the criminal contamination of witnesses; I mean persons entering into communication with the conspirators, with the original purpose of discovering their secret designs, and disclosing them for the benefit of the public. The existence of such original purpose on their part is best evidenced by conduct which precludes them from ever wavering, or in swerving from the discharge of their duty, if they might be otherwise disposed to do so.”

The authority of this last case appears to have been generally accepted; and it is recognized as having correctly stated the principal distinction between the guilty and feigned accomplice, as it has been repeatedly quoted approvingly by text writers. 1 Phillips on Evidence, p. 118; 1 Greenleaf on Evidence, Sec. 382.

The principles of the foregoing decisions have been followed with practical unanimity in the following eases, viz.: Commonwealth vs. Downing, 4 Gray, 29; Commonwealth vs. Willard, 22 Pickering, 476; Commonwealth vs. Wood, 11 Gray, 85; Commonwealth vs. Boynton, 116 Mass. 343; People vs. Smith, 28 Hun. (N. Y.) 626; Campbell vs. Commonwealth, 84 Penn. St. 187; Haughton vs. State, 36 Ala. 236; Smith vs. State, 37 Ala. 472; Wright vs. State, 7 Texas Ap. 574; People vs. Bolanger, 71 Cal. 19.

Sanctioning this principle Mr. Wharton states the rule thus briefly and comprehensively, viz.:

“ Accompliceship is to be proved inferentially; the question is one of fact for the jury.” Whar. Crim. Ev. Sec. 440; Commonwealth vs. Elliott, 110 Mass. 89; State vs. Schlagel, 19 Ind. 169.

On this citation of authority, it can with safety be affirmed, that whether Sherman was a guilty or a feigned accomplice was a question of fact for the jury to decide after hearing all the evidence, and not one of law for the court.

This is not denied, but on the contrary, affirmed by counsel for the State, as the following quotation from their brief will show:

“ Whether Sherman was a feigned or whether he was a guilty accomplice, is not a question of law to be determined by the judge from an inspection of the pleadings, but one of fact to be found by the jury from the evidence.”

“The character and relation of the witness, Sherman, to the case, can not arbitrarily be fixed and determined by the allegations in the indictment; they must depend entirely upon the proof. It is not what the State avers, but what the evidence establishes that must determine the true condition of affairs.”

Such being the character of the issue tendered, it was not competent for the trial judge to consider and decide this question of fact, which properly belonged to the jury; and it is equally evident that this court can not undertake to consider and determine the question presented as one of law, in the face of all the authorities to the contrary. If this court were to undertake to decide, it would be compelled to seggregate from the case and decide in advance of the verdict of the jury, a question of i act which was their exclusive province to decide. By thus deciding, the verdict of the jury would have been forestalled. This action of the trial judge resulted in giving to Sherman the status of a feigned accomplice before the case had been submitted to the jury.

The appellate jurisdiction of this court, in criminal matters, is restricted to questions of law alone. Const., Art. 81.

Therefore, we have not the constitutional power or authority to take from the jury and decide any question of fact of which they are rightfully judges.

That this was the effect of the trial judge’s ruling, will appear from the brief of counsel for the State, thus:

“ This constituted Sherman a feigned accomplice, not a real accomplice, and he was to be treated as an ordinary witness, as to whom it might be shown that he had made a prior statement similar to the one charged to have been made from a design to misrepresent.”

Since State vs. Nelson, 32 An. 842, the constitutional power of this court to examine certain facts adduced on the trial, for the purpose of deciding questions of law thereon raised, has never been questioned.

For instance, testimony adduced after verdict, on a motion for a new trial. That adduced during the progress of. the trial, for the purpose of showing the admissibility of dying declarations. That offered for the purpose of establishing the overt act, justifying the admission of proof of bad and dangerous character of the deceased.

But the jurisdiction of this court, in this respect, is limited to the consideration of evidence which is admitted in the hearing of the judge alone, and out of the presence of the jury; and same must be confined to abstract, legal questions, which are not to be submitted to and decided by the jury.

This question was again very thoroughly examined in State vs. Sieley, 41 An. 143, and in the course of our opinion we said that this court “ has indisputable jurisdiction to examine and weigh the testimony of witnesses, in the consideration and decision of questions of law growing out of the principal issue in the case, and which .are not submitted, to the jury " (p. 145).

At the time these decisions were rendered, the opinion was regarded by some in the light of an innovation upon the constitutional prerogative of this court; and in no case has that latitude been extended or enlarged.

The principles announced in the Nelson and Sieley cases were affirmed in State vs. Nash & Barnett, 45 An. 1137.

When the case last mentioned was again presented for our consideration, we were called upon to consider a certain ruling of the trial judge in which he employed this expression, viz.:

“ The rulings in these two cases” —State vs. Nelson, 32 An. 842 and State vs. Sielly, 41 An. 143— “ were made upon questions purely collateral to the main issue, upon the decision of which they had no bearing whatever. It did not require the court to go into an examination of any evidence touching the prosecution. * * * But when it proposed to extend this rule so as to embrace evidence going directly to the merits; to proceedings arising in the course of the trial before the jury," the judge said “ we may well call a halt.”

This ruling was approved by this court. State vs. Nash & Barnett, 45 An. 1137.

The evidence which the defendants were solicitous to have examined and passed upon by this court in that case related to an overt act of the deceased; laying a foundation for the introduction of uncommunicated threats, and making proof of the violent and quarrelsome character of the deceased.

Obviously that decision did not enlarge the principles of the Nelson and Seily cases; but its direct and immediate effect was to restrict the same within a slightly narrower compass.

As it was a question of fact for the jury to decide, after hearing and considering all the testimony adduced, whether Sherman was a guilty or a feigned accomplice, how could the trial judge do otherwise than a esort to a fair consideration of the whole evidence in deciding the same question? He could not stop short of this. If once decided by the judge, and upon the faith of his decision certain sustaining testimony was held admissible, what becomes of the question of fact for the jury to decide.

Should the jury entertain a different view from that of the judge, and decide that Sherman was a guilty accomplice, certainly the testimony of Lochte was altogether illegal and inadmissible. Therefore, the jury would.be placed in the dilemma of feeling constrained to believe that Sherman was a guilty accomplice, and, at the same time, to convict Dudoussat on the hearsay statements of Lochte, sustaining his veracity as a feigned accomplice.

Can a ruling be sustained which will produce such absurd consequences? Surely not.

(6) Does the record and the emasculated portions of the evidence appended to the bill of exceptions disclose Sherman to have been a guilty or a feigned accomplice? Let us look at the record and testimony from this standpoint.

In the statute under which the defendant is being prosecuted, the giver and receiver of a bribe are equally within its denunciation.

That is equally so of the article of the Constitution, which the bribery statute closely follows. The charge of the information is, that the defendant did, feloniously and corruptly, receive a sum of one hundred dollars from one Charles Sherman as a bribe, present or reward; “ feloniously and corruptly given” to the defendant “ by the said Charles Sherman, with the felonious and corrupt intent on the part of the said Charles Sherman,” etc.

Sherman, as a witness for the prosecution, states that he gave to the defendant one hundred dollars “to have him get (for him) a barroom privilege.” That the defendant promised him several times to secure the passage of a city ordinance granting him the privilege. It was for that reason he gave defendant the money.

In the course of his cross-examination he stated that he had visited the Jackson Brewery, where the defendant was employed, four or five times to see him. That this was before the ordinance had been introduced, and that he had gone there to see him about it. Said he had gone several times to. the brewery, “ because he was taking the word of Mr. Dudoussat that he wa3 going to get his privilege for him.” That he had seen the defendant on the subject, at his grocery, before he had seen him at the brewery.

Lochte testifies that he met Sherman, and had an interview with him, at his own place of business, four days prior to the giving of the bribe; and that, on that occasion, Sherman said the defendant-wanted one hundred dollars for securing for him a barroom privilege; and he, Lochte, told him that he ought to take the matter before the grand jury.

That Sherman said “he would go, but that he wanted first to get his permit.”

All of this is evidence, furnished by the prosecution, out of the mouths of State witnesses.

After all the witnesaes had testified, and the case had been submitted do the jury, the judge charged the jury that “the State must establish 'that, while said petition was pending for consideration and action before said council, the said defendant, a member of the council, and a municipal officer, in his capacity, feloniously and corruptly received a certain sum of money, viz.: one hundred dollars, from said Charles Sherman, as a bribe, present and reward, which was feloniously and corruptly given.to him by said Sherman.”

All of these dealings and conversations took place some days— many of them several weeks — prior to the date defendant is alleged to have received the bribe. Thoughout these transactsons Sherman was confessedly endeavoring to secure for himself a barroom pi'ivilege by means of a corrupt bargain with the defendant. He went to the defendant’s place of business to solicit and perfect their negotiations to that end, and defendant went to his grocery to see him on the subject before the ordinance was introduced.

In his conversation with his friend Lochte, the dialogue is both unique and significant. Lochte said to Sherman:

A. I told him the proper place for that was for him to go before the grand jury.

Q,. What was his answer?

A. He said he would, but he wanted first to get his permit.

Q,. That he would go, but he wanted first to get his permit?

A. Yes. (My italics).

It must be remembered that the agreement that is alleged to have been made between Sherman and his confederates, to concoct a' plan for the defendant’s capture with the bribe in his possession, was only formed on the day previous to the commission of the crime;. and that all of the transactions related preceded it, days, and even weeks.

Is it not apparent that all of Sherman’s acts, prior to this confederation, were those of solicitation and inducement, and that the definite, well defined and confessed object in view, on his part, was only to secure his barroom privilege?

Having, as he supposed, succeeded in procuring that, he entered into the conspiracy to secure his arrest, as an afterthought, possibly inspired by others — albeit for a praiseworthy object.

The Iowa court deemed it essential that the jury should be satisfied from the evidence that ‘ ‘ the witness intended from, the beginning to act the part of the detective.” State vs. McKean, supra.

And Lord Ellenborough, in Rex vs. Despard, supra, laid stress on a like proposition, and said: “I mean persons entering into communication with the conspirators with the original purpose of discovering the secret designs of the defendants, and of disclosing them for the benefit of the public.”

Does the foregoing statement from the pleadings and evidence make is clear that Sherman “ intended, from the beginning, to act the part of the detective?” Does it show that it was his origina “purpose” to discover the fraud and crime of Dudoussat, and expose him,, for the benefit of the public?

Both of these questions must be answered in the negative, if the evidence is to be regarded.

Mr. Bishop says: “ An accomplice is one who has become a partaker with others in a crime, whether his guilt is in the same degree with others or not. It must be legal guilt, a participation reprehensible in morals only, or only colorable, is not sufficient.” 1 Bishop Crim. Prac., Secs. 1173, 1159; 4 Blackstone’s Com. 34, 331; 1 Russell on Crimes, 26. That he further says:

“ One who has connected himself with the offence in a way morally corrupt, while yet he is not indictable, is, as a witness, subject, in part, to the same observation as an accomplice, but not fully,” his testimony requiring confirmation. Ibid.

To my mind, it is a clear conviction that Sherman was, to all intents and purposes, a guilty accomplice, and should have been so treated and considered by the trial judge; and that, consequently, the admission of the testimony of Lochte was reversable error.

II.

Pertinent to the foregoing inquiry is one of the special charges which defendant’s counsel requested the trial judge to give, and to his refusal to give same a bill of exceptions was retained.

It was that if the jury find from the evidence that Sherman was a guilty accomplice, the corroborative evidence should, at least, have a tendency to connect the accused with the commission of the crime charged.

This instruction was refused by the trial judge for the reason, viz.:

“ In my opinion, Sherman was not an accomplice. * * * Ire-fused to so charge the jury, because the point did not arise in the case, and the charge was not applicable to the facts in evidence.”

It is evident that the judge was in error in making this statement from what has been found in the preceding paragraph.

The only way in which his two rulings can be harmonized is to view the question as to whether Sherman was a guilty or a feigned accomplice as having been by the judge entirely withdrawn from the consideration of the jury, and solely resting on the foregoing bill of exceptions. This, in the light of all the authorities, he was not competent to do.

III.

The next bill of exceptions to which my attention is attracted relates to another special charge which was requested by counsel, and refused by the court, viz.:

“ It is incumbent on the part of the prosecution to prove to the satisfaction of the jury, beyond a reasonable doubt, that Charles Sherman did feloniously and corruptly give to the accused, Numa Dudoussat, the sum of one hundred dollars, as a bribe, present, or reward, with the felonious and corrupt intent on the part of Charles Sherman,” etc.

This request was refused by the trial judge, for reasons already assigned in other bills. This bill is the counterpart of the last two; but it has a different object. That object was, evidently, to obtain from the judge an explanation of what is an apparent conflict between two different paragraphs of his written charge to the jury, one of which is to the effect that “ the State must establish beyond a reasonable doubt * * * that the defendant * * * feloniously and corruptly received a certain sum of money * * * from Charles Sherman, as a bribe, present and reward, which was corruptly given to him by said Sherman,” and the other was to the effect that “ the defendant is chargeable with the crime of receiving a bribe, whether the giver of the bribe acted himself merely with a view to secure the detection and conviction of the accused, or otherwise.”

It is evident that these two instructions are inconsistent, irreconcilable, and confusing.

I think the jury should have had the conflict explained; and justice to the defendant required it.

IV.

The next bill relates to the defendant’s application for a new trial. The motion assigned fourteen grounds, but the purposes of this dissent only require notice of but one, and that is the eleventh, viz.:

“ That the written charges and instructions of this honorable court, to the said jury, were inconsistent, conflicting and contradictory, and calculated to confuse and perplex them,” reciting in full the two paragraphs from the written charge, from which the foregoing quotations are made.

But, while the trial judge, in his assignment of the reasons for refusing to grant defendant a new trial, elaborately discussed other grounds of the motion, he omitted altogether this one from any con - sideration. It is not mentioned at all.

Counsel for the State say in their brief, viz.:

“The objection that the charge contained contradictory statements was not interposed at the trial. No opportunity was afforded the trial judge to correct a mistake which was unmistakably due to inadvertence,” etc.

This statement admits that the two quoted paragraphs from the charge were “ contradictory statements,” and that same were “ unmistabably due ” to inadvertence on the part of the trial judge.

But the preceding paragraph of this dissent shows clearly the counsel’s error in stating that these “contradictory statements” were not mooted at the trial. They are quoted and referred to in that bill.

The general charge which contained these two conflicting and ‘ ‘contradictory statements,” was in writing, and filed in the record on the 3d of December, 1894; and the defendant’s requested special charges being also in writing, were handed to the judge, and as the minutes of the court disclose, he kept them under consideration until the following day, when they were severally refused and filed in the record.

This occurred, of course, before the ease was given to the jury for their deliberation.

Manifestly, the trial judge had ample time, as well as opportunity, to inform himself in the premises, and he should have, in some proper way, made an explanation of these “contradictory statements” in his general charge before the jury retired. To his declination a bill was reserved.

After the defendant’s conviction, a motion for a new trial was his only alternative relief; and, in onr opinion, that relief should have been afforded. Refusing it was relievable error.

I have gone over this case very carefully, and patiently investigated the record, as well as the authorities, as I try to do in every case, and I arise from my study of the matter with the settled conviction that the defendant should have a new trial, because his conviction rests exclusively upon the testimony of Sherman, who is a guilty accomplice, sustained alone by the hearsay statement of Loehte, merely reiterating a statement Sherman had made to him four days previous to the alleged bribery and out of the presence and hearing of the defendant.

For these reasons I feel constrained to dissent from the opinion and decree of the majority.

Case Details

Case Name: State v. Dudoussat

Court Name: Supreme Court of Louisiana

Date Published: May 6, 1895

Citation: 47 La. Ann. 977

Docket Number: No. 11,763

Court Abbreviation: La.