91 So. 740 | La. | 1922
On an indictment for murder, the accused, Oolbert and Onnie Jordan, were convicted of manslaughter, and sentenced to not less than 18 and not more than 20 years at hard labor; and have appealed.
The learned counsel for accused saw in this the introduction of new facts before the jury, and an accusation against him of having procured false testimony.
There was, no doubt, an introduction of new facts, since no witness had testified (so far as the record shows) to the said alleged episode in Mr. Wallace’s life. But these new facts were not of a nature to prejudice the case of accused. What Mr. Wallace had done or said in some case in the past could not prejudicially affect the case of accused before a jury of even mediocre intelligence. This Wallace story was, no doubt, one of the kind with little or no foundation in fact, such as oftentimes become current, no one knowing how, in connection with eminent men; and which are useful for setting off, or giving point to, an argument. And evidently this was the use the district attorney was making of this story; as an orator uses some bit of history with which he assumes his auditors are familiar.
If thereby he had meant to assert that opposing counsel had suborned the witness, such a statement, founded on no proof, would have been highly reprehensible; but the learned trial judge did not so understand, nor do we, and the jury would have been dull indeed for so understanding. The statement that Mr. Long had gone Mr. Wallace one better meant no more than that the case which accused Jordan had sought to make out by his testimony had gone Mr. Wallace one better. It was only by a figure of speech that Mr. Long was said to do this. He being the attorney in the case, the case was said to be his. The district attorney must be given the credit of possessing ordinary common sense, and therefore of knowing that, in view of Mr. Long’s high standing, a charge of suborning^ testimony, if made against him without any foundation whatever for it, as would have been the case in the present instance, could only prejudice the case of the maker of the charge, and not Mr. Long or Mr. Long’s case. The whole object and purpose was to convince the jury that .Jordan’s testimony was false, and not that Mr. Long had done anything wrong.
“I got to the cell door, and Colbert was standing in the door, and the other one was over there not three feet away. I had a copy of the venire and a copy of the bill of indictment for each one. I handed in both of them one at the time and told them that there was one for one and one for the other. I handed them in at the door ,and one of them taken them both. Q. And Onnie Jordan got them both? A. Yes, sir. Q. Did Colbert get a copy? A. Yes, sir; Colbert got a copy. I could not swear positively that he handed it to him, hut he turned around, and he may have dropped it on the floor. * * * I told them there was a copy of the bill of indictment and a copy of the venire list. Q. What was Colbert Jordan doing when you went up there? A. He was standing in.the door. Q. Facing you? A. Yes, sir. Q. While you were handing the papers to Onnie Jordan, he was looking at you? A. .Yes, sir.”
In this matter we believe the sheriff and find that the service was sufficient. And, moreover, think it was sufficient even accepting the testimony of -the two accused, since the papers were delivered to one in the presence of the other in this cell with the statement that there was one for each; and since the two brothers were friendly. We do not know that .there is anything sacramental in the manner of serving such papers. The statute merely requires that the accused shall have a copy delivered to him. The purpose is to bring the papers to his knowledge and to afford him an opportunity of having them. This purpose was accomplished by the delivery of the papers to one of the brothers for both in this narrow cell, with the explanation that there was one copy for each; the other brother seeing the papers delivered and hearing the explanation.
“It is unfortunate that to my left is sitting the.widow of decedent, with four small children in her charge.”
There can be no harm in the district attorney reminding the jury of the heinousness of murder; and impressing the reminder by some object lesson', if he can do so without having recourse to facts not proved, or which he has no right to assume the jury have knowledge of. In the present case the facts used had appeared in the evidence and were before the eyes of the jury. The district attorney has the right to argue that the accused is guilty Of murder; and he has the right to point to the fruits of murder if they are before the eyes of the jury. What this court condemned in State v. Thompson, 106 La. 362, 30 South. 895, was the district attorney’s having gone out of the record for doing what in this case the district attorney did without going out of the record. It was the going out of the record that was condemned in that case.
Judgment affirmed.