*1 572 571 seriously personal he has interest” no course, if the Recorder Of reading the not borne out a reinstatement contending that that case. mortgage might cause in recordation of Article under rendered liable him he appeal is dismissed. he Code, damages for 3394 mortgage clear certificates had issued subsequent can- Reddix
the name of mortgage before the
cellation Carrere, pendens of a
recordation lis in~ appealable an he be said that
could
the de-
terest
affected
cree.. STATE MORGAN. v. brief, there possibility in such any No. 38215. that there ba- whatever for the statement.
sis fact 17, March 1947. opinion, previous we relied In our Rehearing' April 21, Denied Edmiston, Tharp 175 La. cases v. Burg, 12 Succession So. authority 195 So. Re- appeal of the dismiss
declining to analysis A Mortgages. careful
corder of not opinions reveals
of those reason
apposite to instant case for the matters,
that, each those the Record- appealing Mortgages
er of mort-
judgment ordering him cancel a here, whereas, judgment
gage, does perform any him to act whatever
order way. him i-n
or otherwise in our former to the ef-
statement authority Tharp Edmiston is
fect that proposition Recorder right
Mortgages ap- has the to maintain an though his interest is
peal “even interpretation sustaining his of his du- property matters affecting
ties office in *2 Womack, Rouge, D. of Baton
James Ory Dupont, Plaquemine,’ A. and Leslie Fitch, Rouge, Baton for defendant Jr. and appellant. LeBlanc,
Fred E. Atty. Gen., M. S. Gen., Dewey Culligan, Atty. Asst. J. Croom, Sanchez, Atty., Dist. B. B. Atty., Asst. Rouge, Dist. both Baton appellee. O’NIELL, Chief Justice.
The defendant was indicted the crime murder, twice, tried was first mistrial, trial resulting in a and the second in a manslaughter. conviction for He was imprisonment sentenced peniten- to in the tiary term for the of seven and is appealing from the conviction and sentence. The victim of the homicide was the de- fendant’s mother-in-law. She was shot dur- ing shot-gun duel between her husband urged defendant. He two defenses case, the' on the trial of the first defense being which killed shot mother- his gun in-law fired her hus- was band, being the second defense if the gun came from the fatal shot defendant’s life, being he was firing defense his father-in-law, first his and was attacked justified, of self- under law defense. attorney’s her sons. The district bills ex- vention of sixteen record contains
The that the al- testimony important bill is ception. The most by his leged statement to defendant to the refusal reserved one hearsay explain mother-in-law was judge to allow the related have been automo- that incident said brought shotgun in his his father-in-law’s her remote from his was too when he came to bile theory difficulty. judge sustained the fatal wife. search of his home in objection. defend- was that the the State advanced brought had ant Our is that the defend kill his wife. carrying a threat out pur admissible for the ant’s theory State offered support of that In pose contradicting the evidence objection, evidence, defendant’s over the prove pur State had introduced to killing night before the prove that on the pose brought his for which the defendant quarrel wife and his the defendant shotgun in his automobile when he went home, and leaving ended father-in-law’s house search of his kill In contra- threatening her. Certainly was not ob the evidence wife. theory, of the State’s rebuttal diction hearsay jectionable be being *3 brought shotgun his why the defendant to purpose the it not offered of cause was for he went in search when automobile in his proving of mother-in-law the truth what the wife, .proposed defendant to the of his regarding told the had the vio substantially, protect that it was prove,, husband, disposition lent but was part the against violence on his himself merely prove that offered fact she shotgun carried father that he wife’s had made the statement to the defendant. when he went his fath- automobile in his the defendant’s Whether admission that the of wife. house search his er-in-law’s him by statement made his mother-in-law him, attorney asked defendant’s made four or before the testifying a witness in the when he time made the too evidence and, shotgun, brought the had any importance remote to this case answer, at- anticipating prosecuting jury for was a matter to determine. objected torney and the was withdrawn preparation The defendant then from the court room. Evidence for' testified, in the absence always commission a crime is ad State; shotgun for bringing reason missible evidence in ex him, mother-in-law had told four planation preparation of such acts of that his difficulty, always before the fatal or five admissible 1 defendant. Marr, Jurisprudence kill husband had tried to her and was Criminal Louisiana 97; doing 1923) prevented by (2d Claire, from so 1889, the inter- State ed. v. 41 577 578 129; 191, Stockett, 6 v. La.Ann. So. State or relevant fact at issue 1000; 1905, 743, 115 So. State La. 39 photographs v. when the were of 402; 1911, Werner, 1, 54 So. State La. fered in evidence. In offering them the Bankston, 1928, attorney stated, La. So. district response v. to the 565; Wharton, (11th objection, Criminal Evidence defendant’s that he offered them 1935) 352, purpose ed. sec. “for the proving corpus de licti of proving the It true that State Werner v. [128 nature, scope and extent of the wound re concluded, 54 So. court 404] by ceived corpus deceased”. delicti present pertinent are not to the proved already been the testimony case, that the exclusion the defendant’s the coroner and the introduction in explanation having of his been armed was evidence of proces verbal of the coro sufficiently prejudicial justify setting inquest. ner’s Also the location and the verdict; aside in that case but even nature and effect of the body wounds general took occasion to affirm the of the deceased had described been in detail rule, thus: by the testimony, coroner in his and there “We should have evidence been dispute was no subject on that at the time admitted; for, certainly, was relevant for it attorney when district offered the grue reason, defendant to offer some other if he photographs in evidence. The law on armed, could, having for his than that subject admissibility photo imputed intending to him of to use the wea- graphs in evidence a criminal pon upon his wife brother-in-law.” is stated State Johnson, 198 La. 195, 204, 205, 556, 559, 3 So.2d — thus: exception Another bill of which we they “Where otherwise ad- important consider was reserved to the mitted, objection it is not a valid to the overruling of an tend attorney defendant’s to the prejudice jury. Competent and ma- two photographs of terial evidence should not be excluded mere- the dead of the victim of the homi ly have a tendency to cause cide. Our *4 beyond an influence the strict limits for present that do a gruesome ghastly or which Wharton, it is admissible. Criminal spectacle, which well have disturbed Ed., 11th p. Vol. sec. 1321.” composure of the jury members in their deliberations. There no need The proposition converse of that going into details subject. on that It is that if a photograph is not at say sufficient to that all or introduction material evidence in a crim in evidence was not at all inal it should be excluded if it trial, a in- case to the district court for new tendency cause an undue a objec- 16 bills ex- ground that two of the upon jury. Therefore the fluence ception during course reserved case should not photographs in this tionable I cannot trial error. when the disclose reversible and evidence if be introduced opinion agree majority with that these State shows again, case tried unless respect- two therefore bills have and merit necessary purpose fully dissent. evidence. of the exception only remaining bill of The surrounding The and circumstances important is the one which we consider majority opin- the first bill discussed in overruling of to the was reserved which the defendant ion are follows: While trial. The motion a new supplemental a behalf, his coun- own witness upon newly- so-called was founded motion question: “Fred- propounded to this sel him necessity, There is no discovered evidence. die, you gun that take did out upon bill however, this passing for our you day?” Upon with that Babin home now, concluded to we have exception since State, by the question to this trial. On the a new the case for remand retired, its during absence the op- an will have the defendant new ques- explained to the in answer course, introduce so- portunity, of Babin, deceased, told him tion that Mrs. newly-discovered evidence. called that her husband or five before four exception thirteen bills remaining The once, her that sons started to shoot rulings which objections are relate to away keep him had to take trial of the in another apt to arise Thereupon shooting the trial her. him from consid- need not be objection on the judge the State’s sustained ered. sought to be eli- ground appealed from and sentence verdict The hearsay from the defendant cited ordered re- case is and the annulled too remote. for a new district manded to judge the trial am trial. objection. properly sustained the ruling from the J., McCALEB, dissents ques- defendant to answer agree- is in but photographs, concerning the propounded, given in absence of tion bills other considered. ment toas that the evidence shows was a statement sought introduce HAWTHORNE, J., dissents. him deceased to four n prior HAWTHORNE, (dissenting). homicide with reference to the Justice difficulty deceased had with in this case annuls majority remands the husband at time. sentence and the verdict *5 majority opinion, holding that of time toor matters too far removed from the evidence should have been admitted for the scene of a to be transaction admissible. it reason that was relevant for defend- The admissibility such evidence is a mat- explanation offer having ant to for his resting ter largely the discretion imputed armed than that to him other trial court." (Italics ours.) State, says is: rule “Evi- the. This rule is stated in I Wharton’s Crim- preparation dence commis- Evidence, inal (11th ed.), Section page always sion of a crime is admissible for the 587, thus: State; explanation and evidence of such always preparation acts admissible “No exact limitation to time can be for the defendant.” cases Numerous and established in which an act must have oc- support textbook writers are cited there- curred in order give it evidential value. of. Generally speaking, question of remote- ascertain, I can
farAs the courts of ness to authorize the exclusion of testimony recognize no depend state refused this rule. upon should all of the considerations However, that, do when the of including time, the character seeks introduce evidence sought proved, the facts and all explanation preparation, his acts the of surrounding which, circumstances contemplates suspen- or warrants the rule court, of the trial ought to be ordinary rules sion considered in the determination mat- incompetent'or render evidence inadmissible ter may issue. Evidence be relevant, hearsay, etc. irrelevant or yet so remote in time as be of little or value, hence, majority opinion excluded. holds that whether hand, passage On the-other may of time four or five statement made be- weight and not too re- fore the time significance. its The determination any importance mote to be of in this case question, therefore, must rest in the sound determine, or, was matter for the discretion the trial (Italics court." differently, óf weight somewhat stated .ours.) question given to be this statement was a and its remoteness did not thus stated with' The rule reference to admissibility.
affect its remote evidence clearly “"Evidence”, Am.Jur., page Section remoteness that its affects shows its admis- gives the rule with reference the ad- question sibility, and that the of its admis- missibility of remote evidence as follows: judge, sibility is for the not the jury. competent as the evidence which
“Evidence which otherwise Inasmuch defend- point sought to introduce related relate to too remote ant to a con- 58(? ture, effect of the wounds on deceased him and the between
versation had been described detail before, it was of deceased in which four or testimony. the coroner in his against had been that threats divulged *6 un- husband, it was by her the deceased (11th 2 Wharton’s Criminal Evidence any value of questionably remote to be too 774, page Ed.), gives the rule Section the Babin he took the explain applicable which case as this In day homicide. of the the home on follows: admissibility the event, clear that the rule is * “* * Thus, prosecutions in ho- the within matter is a of evidence remote micide, photographs portray the it is Unless judge. trial discretion of the purpose the deceased of showing discretion judge abused that the shown location, manner of the death and the se- defendant, the thereby prejudiced the verity, and number of wounds are admis- be sustained. judge trial should ruling of the ** * may sible. Photographs be also abuse of such Undoubtedly, there was * * * admitted corpus establish the my and, in case, instant discretion the * * * the charged delicti crime opinion, merit. the bill has no testimony.” corroborate majority in the bill discussed The second corpus Proof of the delicti is an issue in ruling the to a taken every by and must be made to introduce the State judge permitting prosecution. the Even though the coroner photographs over ob- evidence certain location, nature, testified as to the photo- These jection defendant. effect of the the,body wounds of the the State offered graphs were deceased, these photographs merely corro- corpus delicti and proving testimony borated his and were admissible nature, scope, extent wounds purpose. for such by the deceased. received In Johnson, State majority opinion of the of the So.2d It is quoted case photographs presented cited and these majority spectacle as the law ghastly stating on the gruesome and subject of admissibility composure of photographs well have disturbed might deliberations, in a jurors prosecution, in evidence criminal in their of the this photographs court held that photographs at were not all deceased were in evidence, were or relevant admitted offered evidence, corpus photographs since the were delicti had offered al- the State proved by testimony connection ready been with deputy coroner, notwithstanding coroner the fact that one objections proces verbal of the of the coroner’s in- of the defendant was that and, further, location, quest, deputy since the coroner could na- describe to satisfaction of the the wounds died,
deceased from which he and that the
admission in evidence
would feeling tend to create a of horror in jurors
the minds of highly which would he
prejudicial to the defendant.
The mere fact that the
body of the deceased offered evidence in
the instant case ghastly, were
and due preju- to this fact
dicial, their does pointed out in Scott on Pho-
tographic Evidence, 661, page $77, Section follows: photograph
“A of the wounds vic- prejudicial
tim crime of a *7 gruesome appearance,
of its but neverthe-
less it is admissible when material to some properly verified; the case and when
issue in otherwise, the rule were
if the more horrible hampered
a crime the more would be the those who had contributed * * *”
to the details its horror. respectfully
For these reasons I dissent.
30 So .2d 549 v. KEENEY.
KEENEY
No.
April 21, 1947.