State v. Ricks

• Citation: 170 La. 507,128 So. 293
• Decision Date: 31 March 1930
• Docket Number: 30477
• Court: Supreme Court of Louisiana
• Parties: STATE v. RICKS

128 So. 293

170 La. 507

STATE v. RICKS

No. 30477

Supreme Court of Louisiana

March 31, 1930

Appeal from Twenty-First Judicial District Court, Parish of Tangipahoa; Nathan B. Tycer, Judge.

Joe Ricks was convicted of manslaughter, and he appeals.

Affirmed.

Ellis Ellis & Ellis, of Amite, for appellant.

Percy Saint, Atty. Gen., A. L. Ponder, Jr., Dist. Atty., of Amite and E. R. Schowalter, Asst. Atty. Gen., for the State.

LAND J. O'NIELL, C. J., dissents.

OPINION

LAND, J.

Defendant was indicted for murder, convicted of manslaughter, and sentenced to the state penitentiary for a term of not less than one year nor more than five years.

The appeal to this court by defendant presents for our consideration ten bills of exceptions.

Bill No. 1.

Article 333 of the Code of Criminal Procedure provides that the trial shall proceed in the following order: "The reading of the plea to the jury; the opening statement of the district attorney explaining the nature of the charge and the evidence by which he expects to establish the same, etc."

In compliance with the above requirement, the district attorney made the following opening statement to the jury: "Gentlemen, the State expects to prove that this killing happened in the Parish of Tangipahoa, State of Louisiana, and that Joe Ricks killed Fred Gill; that he was killed by a gunshot wound in the abdomen in his, Fred Gill's home, and the State contends that Fred Gill was murdered, and expects to prove by the surroundings and physical facts that he was murdered; and expects to prove that the time he was killed witnesses heard an altercation that lasted some ten minutes or more before the gun was fired; the State expects to prove that Joe Ricks, defendant, when arrested had his knuckles skinned on his fist, and that Fred Gill had several bruises on his body other than the gunshot wound. I have some other facts that go to bear out those facts, but will not state them now."

Counsel for defendant objected to the last part of the statement of the district attorney, that he had "some other facts that go to bear out those facts," but would not state them then, on the ground that it was not such a full statement of the facts as was required by law.

This objection was overruled by the trial judge for the reason that the statement made by the district attorney complied with the law's requirements with respect to the opening statement that he should make to the jury.

In our opinion, the ruling complained of by defendant is correct.

The district attorney gave to the jury a summary of the ultimate facts upon which he relied for conviction. This was a substantial compliance by that officer with article 333 of the Code of Criminal Procedure.

As stated in People v. Van Zile, 73 Hun 534, 26 N.Y.S. 390, 393: "It is to be observed, preliminarily, that there is no legal rule for the measurement of an opening, either in a criminal or civil action. It is the legitimate office and purpose of an opening in a criminal action to give the charge against the accused, and the evidence to be presented by the public prosecutor to establish the commission of the crime, and its perpetration by the defendant. Its scope and extent must be controlled by the trial judge, in the exercise of a wise discretion, and it would require a plain violation of the rights of a defendant to induce an appellate tribunal to reverse a conviction for an erroneous opening for the prosecution. What is said in an opening has no binding force, and it is designed only to give a general acquaintance with the case, to enable the jury to understand and appreciate the testimony as it falls from the lips of the witnesses."

Defendant does not pretend to incorporate in his bill any material fact proven by the state at the trial, which was not given by the district attorney to the jury in his opening statement; nor does defendant either allege or show in his bill any injury or prejudice to himself occasioned by the omission of which he complains. Article 557, Code Cr. Proc.

Bills Nos. 2, 4, 5, 6, 7, and 8.

The wife of the deceased was asked by counsel for defendant on direct examination the following question: "Mrs. Gill, what was your husband's, Fred Gill's habit with reference to drinking?"

The district attorney objected to this question, and the objection was sustained by the trial judge.

It is stated in bill No. 2 that the testimony sought to be elicited by the question was for the purpose of showing by this witness that Fred Gill, the deceased, was addicted to the habit of getting drunk, and by other witnesses that, while drunk, deceased was quarrelsome, irritable, overbearing, and of a dangerous character. It is also stated in the bill that, had this testimony been admitted, it would have corroborated, supported, and established defendant's plea of self-defense.

Bills Nos. 4, 5, 6, 7, and 8 were all reserved to the ruling of the court in sustaining objections to the testimony of various witnesses for the defendant, by whom it is contended that the defendant could have proven at least four specific instances in which the deceased, while drunk, showed by his acts that he was of a dangerous and determined character.

The trial judge also sustained the objection made by the district attorney to this evidence.

In the recent case of State v. Wilson Sharpe (La. Sup.) 170 La. 69, 127 So. 368, 369, ^[1] it is said: "There can be no question that, under the plea of self-defense, under proper circumstances, the defendant has the right to show the dangerous character of the deceased, but this must be shown, not by proof of specific acts, but by evidence of his general reputation as a dangerous person. Thus, as said in 30 C. J. p. 174, § 397, Verbo 'Homicide': 'The inquiry as to the character of deceased must relate solely to his general character for violence, ferocity, vindictiveness, or bloodthirstiness. Thus, it is not admissible to prove decedent's general bad conduct or immorality. * * * Deceased's character must be shown by general repute in the community and not by evidence of specific acts. * * *' See, also, State v. Fontenot, 50 La. Ann. 537, 23 So. 634, 69 Am. St. Rep. 455."

Counsel for defendant states in his brief: "That proof of an overt act and hostile demonstration on the part of the deceased toward the defendant is undisputed, and was so conclusive that it satisfied the trained mind of the court."

It is plain, therefore, that the exclusion of the evidence tendered did not deprive defendant of sufficient proof to establish clearly and convincingly an overt act upon the part of the deceased.

Even if the habit of the deceased as to drinking and proof of specific acts were admissible, such evidence in the present case would be wholly irrelevant and immaterial, as there is no proof that deceased was intoxicated at the time of the homicide. His alleged turbulent and dangerous character, when under the influence of liquor on other occasions, is therefore beside the question.

We do not concur with able counsel for defendant in the contention that the Code of Criminal Procedure has changed the former jurisprudence of the state, and that now, under articles 441 and 482, evidence of specific acts is admissible to prove general reputation.

Article 441 declares that:

"Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.

"Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible."

Article 482 provides that: "In the absence of proof of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible."

Article 479 states positively that: "Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him."

All of these articles are found under the common head "Of Character Evidence," chapter 9 in the Code of Criminal Procedure. The declaration in article 479 that "character, whether good or bad, depends upon the general reputation that a man has," is but another way of stating the long-established rule in this state that bad or dangerous character cannot be proven by specific acts.

Bill No. 3.

On cross-examination by the district attorney, the wife of the deceased was asked the following question: "Why is it you evade this thing?"

She appeared in the case as a witness for the defendant, and was interrogated by the state's attorney about her husband's hat at the time of the killing.

In the course of a cross-examination covering a page and a half of the record, the witness stated, at one time, that Hoggett and the two Jacobsens moved the safe from one side of the kitchen to the other after the homicide, and that the hat was on top of the safe.

The witness later testified that she did not know who moved the safe or where the hat was at the time of the killing.

The district attorney then said to the witness: "Why do you evade this thing?"

Counsel for defendant merely objected and reserved a bill to the remark of the district attorney. He did not request the court to take any action in the matter and none was taken.

We are not advised by the bill as to the materiality or relevancy of this testimony, and, under all of the circumstances of the case, we do not feel satisfied that any prejudice or injury resulted to the accused sufficient to annul the verdict and remand the case for a new trial.

Bill No. 9.

After the jury had retired and deliberated two hours, it requested to be brought back into the courtroom for further...