State v. Kervin
37 La. Ann. 782
La.
1885
Check Treatment

The opinion of the Court was delivered by

Manning, J.

The defendant was indicted for murder, was convicted of manslaughter, and was sentenced to imprisonment at hard labour for tea years. He relies for reversal upon the refusal of the judge to admit evidence ot the character of the deceased for violence aud presents the point in a bill and a motion for a new trial.

The defendant’s counsel concedes that such testimony is inadmissible unless there has been proof of some overt act of violence of the deceased, or of threats or hostile demonstrations' by him, and he insists that such proof was made but the judge has not given it th& weight it deserves.

*784The homicide was committed at a church and shortly after tlie religious exercises had closed. In his reasons appended to the bill tire judge after stating the evidence says no proof liad been made of any assault or hostile demonstration by the deceased at the time of firing by the accused, and that the latter had not placed himself within the ride of law that permitted the reception of proof of violent character.

Of necessity the trial-judge must decide whether the proper foundation has been laid for tlie admission of evidence of character, and that foundation is proof of an overt act of attack at the time or threats or hostile demonstrations. In State v. Ford, 37 Ann. 443, the ■ distinction between evidence and proof was pointed out, for while some evidence was introduced by the defendant touching threats and hostile demonstrations of the deceased, counter-evidence was introduced by the State, and on weighing the whole the judge decided that neither threats nor hostile demonstrations were proved. Ho points out the fact that four out of the five persons who were present distinctly testify that there were no threats nor hostile demonstrations and this evidence was satisfactory to him.

Tlie ruling of the judge was not arbitrary but was the exercise of a ■sound legal discretion based upon a careful review of the whole evidence and when that is the case we are hound to take his ruling as conclusive.

Tlie defendant’s counsel contends that all this evidence about overt acts and threats etc. should go to the jury and be weighed by them. But how would a criminal trial proceed or be ai ranged if this were the case? The law is clear that proof of overt acts, threats, etc. must be made before evidence of violent character is admissible. If the jury is to decide whether the evidence on those matters is proof, they must go out and find that fact and then return to tlie box, announce their finding and if favourable to the defendant the judge must then •admit the evidence of character. A jury trial thus conducted would be an anomaly.

There is another point behind this presented by the motion for a new trial.

The defendant offered the testimony taken in writing on the preliminary examination and the notes taken oil the trial by an assistant counsel for the State to prove to the judge that the evidence of threats - etc. was sufficient to admit evidence of character.

We must say this is novel. It is making the judge review his own •ruling on the trial and offering evidence to him to shew that his esti*785mate of the evidence on the trial was incorrect, and that on a matter1 he had adjudged and was beyond recall. As to the evidence on preliminary examination the law requires that the evidence on the trial shall amount to proof of threats etc. before character can be inquired into, and while the judge might admit the notes of counsel on either side to refresh his own memory, if his recollections of the testimony are clear there is no obligation on him to take the notes of others. The judge who presides at the trial must be supposed to have heard all the evidence on such a matter as that. It is addressed to him directly and is offered to him in order that he may decide whether it is sufficient for the purpose, and when he has not only heard it but recites it and declares it insufficient as a foundation for the admission of other evidence upon another matter, his ruling must be final necessarily unless-manifestly arbitrary or not of sound legal discretion.

Judgment affirmed.