57 So. 532 | La. | 1912
The accused was tried for murder, and found guilty of manslaughter, and sentenced to 20 years at hard labor.
The deceased was found dead by the wayside, slain by some person unknown. This was a few hours after he had received his week’s wages, and been cursed and abused by the accused because of his refusal to pay a just debt of $2.85 out of said wages.
The theory of the defense was that the motive of the crime had been robbery; whereas, that of the prosecution was that it had been the animosity of the accused against the deceased for having refused to pay the debt, although having the money in his pocket.
' Over the objection of the accused, a witness was allowed to testify that on the day before the homicide he had handed 25 cents to the deceased, to spend 5 cents in mailing a letter, and to return the remaining 20 cents; and that after, the homicide the father of the deceased returned the 20 cents.
The purpose for which this evidence was offered, and the grounds on which it was objected to, are stated in the bill of exception, as follows:
“This evidence being for the purpose of showing the valuables found on the person of the deceased when he was found on the wayside dead, and to sustain the case in its theory as to the motive for the crime; that is, that the accused had killed the deceased for a debt of $2.85, which the latter had refused to pay the former a few hours before the killing, and to rebut the claim by the defense that the deceased, as a matter of fact, paid said debt to defendant. Said evidence being also intended to repel the idea that robbery could have been the motive for the ci-ime.
“The evidence was objected to as being hearsay, and relating to matters which had taken place between the witness and the deceased out of the presence of the accused; and the evidence was admitted because ‘simply leading to some other facts.’ ”
The eases of State v. West, 45 La. Ann. 17, 12 South. 7, and State v. Young, 107 La. 618, 31 South. 993, cited by the learned counsel for accused in support of the contention that the declarations against interest of a witness, since deceased, are not admissible, are not in point. The rule is that such declarations are admissible. An exception is recognized to that rule in the ease of an acknowledgment by a third person that he committed the crime of which the accused stands charged; and State v. West and State v. Young are mere applications of this exception. Prof. Wigmore (Wig. Ed. § 1476) criticises this distinction as arbitrary and illogical; but he recognizes that it is now too firmly founced to be shaken.
The reason given in the per curiam for admitting this evidence is as follows:
“The accused being on trial for murder, and the only evidence being circumstantial evidence, it is competent for the state to show where the accused resided, the places he ate, the places he slept, and the places he frequently visited when not at his own home; the habits, conduct, and all circumstances surrounding the disposition of the accused are admissible, especially when the evidence shows the accused was arrested the night following the evening of the homicide, which was at a different place of his habitual stays.”
The next bill has reference to an attempted impeachment of one of the witnesses of the accused. The complaint is that the questions propounded for the purpose of laying the foundation for the impeachment were involved and complicated, and embraced different matters, some true and some false, so that it was not possible for the witness to give a single or even intelligent answer to them; and that the testimony adduced for the ostensible purpose of the impeachment went far beyond that purpose, bringing up new matters which not only had no tendency to impeach the witness, but were not even properly rebuttal.
This complaint, we find, is largely well founded. The mode of proceeding for laying the foundation for impeaching a witness, and for adducing the impeaching evidence, is very simple; and we assume that on the new trial of the case there will be no occasion for the renewal of the present complaint on that score.
While the testimony, as reduced to writing by the coroner, may be the most reliable evidence of what the testimony was, it is not the best evidence in the sense of the rule of best evidence; or, in other words, the testimony of the other persons who were present when the testimony was given, and who heard and remembered it, is not secondary evidence, but is primary evidence; and, as such, is equally admissible with the written
This alone is sufficient to vitiate the verdict. The person chosen to interpret into English testimony given in a tongue not understood by jury, court, or counsel must be absolutely disinterested, unprejudiced, and unbiased; and the mind of a person who has contributed towards a fund for the prosecution of an accused can hardly be said to be in that condition.
The verdict and sentence are therefore set aside, and the case is remanded, to be proceeded with according to law.