36 So. 885 (La. 1904), 15,220, State v. Foley

Docket Nº:15,220
Citation:36 So. 885, 113 La. 52
Opinion Judge:BREAUX, C.J.
Party Name:STATE v. FOLEY
Attorney:Joseph Edward Generelly and Warren Doyle, for appellant. Walter Guion, Atty. Gen., Chandler Clement Luzenberg, Dist. Atty., and Samuel A. Montgomery, Asst. Dist. Atty., for the State.
Case Date:June 06, 1904
Court:Supreme Court of Louisiana
 
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Page 885

36 So. 885 (La. 1904)

113 La. 52

STATE

v.

FOLEY

No. 15,220

Supreme Court of Louisiana

June 6, 1904

Rehearing denied June 20, 1904.

Appeal from Criminal District Court, Parish of Orleans; Frank D. Chretien, Judge.

Charles Foley was convicted of murder, and appeals. Affirmed.

Joseph Edward Generelly and Warren Doyle, for appellant.

Walter Guion, Atty. Gen., Chandler Clement Luzenberg, Dist. Atty., and Samuel A. Montgomery, Asst. Dist. Atty., for the State.

OPINION

[113 La. 53] BREAUX, C.J.

The defendant was charged with murder by taking the life of Richard Flynn on the 7th day of April, 1902.

He was tried, and found guilty as charged, on the 16th day of December, 1903.

From the verdict of the jury finding him guilty as charged, and from the sentence of the court condemning him to suffer the penalty of death, he appeals to this court.

The learned counsel for defendant having made the question res gestae vel non the ground of defense, and, in consequence, the ground to be specially reviewed on appeal, we take up that issue.

Both the prosecuting officer and the counsel for defendant agree in the statement, sustained by the jurisprudence of this court, that the question of res gestae must be determined according to the circumstances of each case.

We gather from the transcript that on the night of the shooting which resulted in the death of Flynn the two police officers who were near the locality of the shooting heard shots and saw them fired, and after the first two shots which were fired -- one immediately following the other -- they ran to the place where the shooting occurred, and to the place where the wounded man lay. To quote from the narrative of the bill of exceptions:

[113 La. 54] "The witness saw the entire affray from the moment that the first flash was seen, and up to the time that he reached the wounded man no one had reached the scene."

They were 400 feet away when they saw the light of the shots. The testimony is that

Page 886

it took them 10 or 14 seconds to run over the ground -- evidently an exaggeration, as they could not run the distance in so short a time. The statement of the witness regarding this fast running ceases to be absurd only when it is considered, as we infer, that this witness (one of the two officers in question who came up after the shooting) desired to convey the idea that no time was lost in running from where they were standing to the spot of the shooting. They found the deceased in the gutter, alongside of the curb. It was at that time that the witness, one of the officers before referred to, asked him who shot him. The answer of the deceased was, "Foley shot me without cause or provocation."

It was to this statement of the deceased that the defendant, through counsel, reserved a bill of exceptions, which brings up the point before us for decision. The court admitted the said declaration of the deceased as part of the res gestae.

The trial judge adds the following to his narrative in the bill of exception, which we quote a second time for the sake of connecting statements:

"The witness saw the entire affray from the moment that the first flash was seen, and up to the time that he reached the wounded man no one had reached the scene."

The defense lays some stress upon the form of the answer of the witness. We, for that reason, insert the testimony on the point in the words of the witness:

"Q. When you ran to this man, did you stop and ask him immediately about his condition?

"A. Yes, Sir.

"Q. Did you ask him, when he was lying down who shot him right then?

"A. Yes, sir, when I went there I tried to gr...

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