30 La. Ann. 536 | La. | 1878
The opinion of the court was delivered by
The defendants were indicted for murder, found guilty of manslaughter, and sentenced, respectively, to six and three years confinement at hard labor in the Penitentiary. After an ineffectual motion for new trial they have appealed.
The case is before us on several bills of exception, the first of which is to the refusal of the judge to sign a bill of exceptions prepared by the counsel for the accused in regard to one of the jurors who was sworn to try the case after being examined on his voir dire, and to the refusal of tho judge when applied to to sign the bill, to hear evidence of defendant’s counsel as to what his ruling had been, and what were the answers of the juror upon which that ruling was based. The judge refused to sign the bill as drawn by counsel, for the reason, as stated by him, that the statements of what the juror had sworn on his voir dire, contained in it, did not accord with his recollection of the facts, and that his uniform ruling had been other than as stated by counsel. The judge
The second bill of exceptions is to the refusal of the judge on the trial after th.e regular panel had been exhausted and tales jurors summoned by order of the court to have a list of the tales jurors served upon the accused as requested by their counsel. The court did not err. The prisoners had no right under the. law to service of a list of tales-men.summoned. See State vs. Reeves, 11 An. 685; 14 An. 461; same, 651.
The third bill of exceptions is to the refusal of the judge at the request of the counsel for the accused to charge the jury after the State had offered evidence of a confession of the accused in regard to the homicide “ that the confession of the accused having been elicited by the State the jury must take the whole confession together; that they could not admit a part without receiving the whole, and that the State was bound by the confession as it had been brought out by the State.”
No bill was taken, nor does it appear that the court received a part of the confession and rejected the remainder. We therefore understand, and from the reasons given by the judge for his ruling, that it related entirely to the effect and not the admissibility of the confession. He says “ the court refused the charge requested for the following reasons: The court charged the jury that they were the judges of the law and the evidence; that they could believe the confession of the prisoner as true or false; that they had the right to believe a part and reject the other if they saw fit, or reject the whole; the truthfulness or falsity of all evidence, and the weight to be attached to it, being left exclusively to them. The charge asked by defendants’ counsel is not law.”
Greenleaf says on this subject, vol. 1, sec. 201: “But though the whole of what be, the person making the admission, said at the same time and relating to the same subject must be given in evidence — as we understand was done in this case — yet it does not follow that all parts of the statement are equally worthy of credit; but it is for the jury to consider under all the circumstances how much of the whole statement they
The court did not err in refusing the charge asked for, as we understand the facts presented by the bill.
The fourth bill of exceptions is to the refusal of the judge to receive-the evidence of a witness offered by the accused to prove declarations or confessions of one of the accused, “about the same time,” to other persons than the witness Rhames, who had given evidence for the State of certain confessions of the same party in regard to the homicide. The accused had a right to have offered the whole of the confessions made at the same time with those offered by the State, whether made to the same person or not, if we can conceive of such a case, but he had no right to offer on his own behalf declarations made by him in his own favor at a different time from those offered by the State, no matter to whom made. No connection is shown between the confessions or admissions received and those rejected.
The court did not err in refusing to receive the evidence. The-record is silent upon the subject, but it has been stated at bar by the counsel for the accused that he was permitted at his own request to await the close of the trial before presenting bills of exception on points reserved during its progress. If this be so, it accounts very naturally for any difference in regard to them between judge and counsel, and only illustrates anew the propriety of what this court has often said, that bills should be presented without unnecessary delay, while the facts are fresh in the memory of both judge and counsel. See 5 An. 24. This is especially true in cases of so grave a character as the present, and it is not for us to presume that a judge whose duty it is to preside impartially and to accord to the accused and his counsel every right given them by the law has failed or refused to do so.
The fifth bill of exceptions is to the refusal of the judge to have taken down in writing for use upon appeal testimony offered by the accused to substantiate the facts alleged as grounds for new trial. The judge says he refused to comply with the request of counsel for the reason that the evidence in criminal cases is not required to be reduced to writing, as the Supreme Court has appellate jurisdiction in such cases on questions of law only. There is no question of the general correctness of this proposition, but its application is usually to the evidence given upon the trial on the merits of the case, which, of course, under the Constitution, and as we have often held, can not be considered by this court, even if brought up in the transcript. It often happens, however, that we have occasion to review and do review the evidence, and the action of the court below upon it, given on matters incidental to the
The better practice is to append to the motion for new trial evidence in the shape of supporting affidavits which come up with the motion itself; otherwise, it is only by bills of exception that the facts upon which the court below ruled in incidental matters in criminal cases come before us. The bill under consideration does not present the evidence referred to, and we are therefore unable to pass upon or consider it, and thus to afford the accused the benefit of this bill of exception. The motion for new trial itself is based upon the discovery since the trial of important and material evidence, first, affecting the competency of one of the jurors who tried the case, and contradicting his statements when sworn on his voir clire; and, second, in regard to statements made prior to the trial by the principal witnesses for the State, in regard to the material facts and their means of knowledge of them, directly contradicting their evidence as given on the trial. Next, upon the ground of alleged misconduct of the district attorney, in giving to the jury and permitting them to take with them to their room, without the knowledge or consent of the counsel for the accused or of the court, and specially inviting the attention of the jury to certain law books with passages marked, with a view of influencing their verdict; matters which were not known to the accused till some time after the jury had retired to their room. Misconduct on the part of the jury, based upon the same matter, is also alleged. The motion for new trial further sets forth the fact that the judge gave certain charges to the jury alleged to be erroneous, which are stated in and as part of the motion; and also the general ground that the verdict is contrary to the law and the evidence.
None of the grounds for new trial are presented for our consideration by bills of exception. If the district attorney did so hand law books with marked passages to the jury for use in their room, it was extremely irregular and improper, no matter how intended. We are, therefore, compelled to remind counsel that the charge of the court, whether in a criminal or civil case, can not be proved by witnesses, much less by the affidavit of the accused for new trial, but can only be brought before this court for review through a bill of exceptions — see 8 R. 529,
While, however, we have applied the principles of well settled law to the various matters reviewed and discussed by us in detail, on the whole case, we are not left without an impression of the possibility that there may have been irregularities calculated to influence the result of the trial unfavorably to the accused, and that his counsel may have mistaken the manner of presenting them for the consideration of this court. As, therefore, less injury would be done to the State by our granting another trial than, possibly, to the accused by refusing it, and as this court has held new trials may sometimes be granted though no precedent exist for them,
It is ordered that the verdict and sentence appealed from be and they are avoided and set aside, and the case remanded to be proceeded with according to law.