33 La. Ann. 1252 | La. | 1881
Opinion on the Merits
On the Merits.
The accused appeals from a conviction for larceny, and complains, in a bill of exceptions, of the error of the judge in allowing the State to introduce testimony for the purpose of contradicting one of his witnesses, by showing that said witness .had made previous statements contradictory to what he had said on the trial, without laying the proper foundation for such testimony. Witness for the accused was asked the following question by the district attorney: “ Did you or not tell James McGowan, the prosecuting witness in this case, at his gate, that the hogs found in the hog pen belonging to accused would have been killed during the night that they were turned out of said pen by McGowan ? ” The witness having denied making such a statement, the State then offered to prove by McGowan that the witness had made the statement referred to. Counsel for accused objected, on the ground that proper legal foundation had not been laid for the admission of such testimony» the object of which was to impeach and contradict his said witness, and he reserved his bill to the adverse ruling of the District Judge.
The rule governing this kind of evidence, as laid down by the very authorities < uoted by counsel, requires that the introduction of such testimony ust be preceded by a proper foundation, calculated to protect the witnes. sought to be contradicted against an unjust surprise, and to give him a fair and reasonable opportunity to explain his previous statements anti o reconcile them, if he can, with his subsequent statements mad cn-O- trial of the case.
In this case, the question propounded to him refers him to a particular statement which he is charged to have previously made to a person properly described and designated with great certainty, at a particular place specifically described, and touching a subject minutely detailed.
As acknowledged by counsel, the only missing link in the question is the time at which the alleged statement was made. And we do not understand that that element is sacramental under the rule, when the witness is otherwise fully informed and cautioned by circumstances sufficiently certain, and evidently calculated to remove all doubts, in his mind, as to the identical conversation sought to be directed to his attention.
We; therefore, hold that, under the circumstances of this case, a proper legal foundation had been laid by the State for the introduction of the proffered testimony, which was properly admitted. Roscoe’s Crim. Evidence; 5 An. 408, Fletcher vs. Fletcher; 6 An. 596, Paradite vs. Sun M. Insurance Co.; 10 An. 16, McDowell vs. General M. Insurance Co.; 13 An. 191, Fletcher vs. Wife; School Board of Union parish vs. J. E. Trimble, 33 An., not yet reported.
The judgment of the lower court is, therefore, affirmed with costs.
Lead Opinion
The opinion of-the Court was delivered by
The motion to dismiss this appeal on the ground that the transcript was filed too late cannot prevail. In the order of appeal the return day was fixed for the 13th of October, 1881, aDd the transcript was filed on the 17th of the same month ; the Court not sitting on Sunday, the 16th, three judicial days had, therefore, not elapsed since the return day.
