State v. Ashworth

• Decision Date: 11 February 1929
• Docket Number: 29683
• Citation: 120 So. 865,167 La. 1085
• Court: Louisiana Supreme Court
• Parties: STATE v. ASHWORTH

120 So. 865

167 La. 1085

STATE v. ASHWORTH

No. 29683

Supreme Court of Louisiana

February 11, 1929

Appeal from Fourteenth Judicial District Court, Parish of Beauregard; Thomas F. Porter, Judge.

Fred Ashworth was convicted of manslaughter, and he appeals.

Conviction and sentence affirmed.

Elmer L. Stewart, of De Ridder, for appellant.

Percy Saint, Atty. Gen., and John J. Robira, Dist. Atty., and S. H Jones, Asst. Dist. Atty., both of Lake Charles (E. R Schowalter, Asst. Atty. Gen., of counsel), for the State.

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

OPINION

THOMPSON, J.

The defendant was tried for murder, convicted of manslaughter, and sentenced to hard labor for a term not less than 13 years nor more than 20 years.

The errors claimed to have been committed by the lower court are presented in 25 bills of exception, to which is added a suggestion in the brief that the sentence is illegal because the minimum imprisonment exceeds that authorized by law.

The first complaint is that the court refused counsel's request to permit the mother of the accused to sit by counsel and assist him in the trial of the case.

The denial of the request was based on a rule of the court which excludes from that part of the courtroom, reserved for the court, jury, and attorneys, all persons not officers of the court.

We can see nothing wrong in observing the rule in this case, and certainly no injury is shown sufficient to justify a setting aside of the conviction.

The fact that a distant male relative of the deceased was permitted to advise with the district attorney did not alter the legal situation. The mother of defendant sat outside the rail, and was frequently consulted by defendant's counsel.

The second bill relates to the refusal to sustain a challenge for cause of a juror, Lewis, thereby forcing defendant to challenge peremptorily.

This juror had heard a cousin of the deceased relate the facts of the killing some time before the trial, and testified that the facts as stated made some impression on his mind at the time, but at the present time he had no impression whatever, either for or against the defendant, and could try the case with a free and open mind, solely on the evidence produced.

The examination failed to develop any feeling of prejudice on the part of the juror against the accused, and his friendship for the deceased and his family was not shown to be any stronger than it was for the accused and his family.

The ruling was correct.

Bill 3 purports on its face to have been reserved to the statement of Mack Clark as to an exclamation made by the mother of the defendant immediately following the fatal blow and in the presence of the defendant.

It appears from the evidence of Clark, attached to the bill, that right after the killing Ella Ashworth, mother of defendant, ran up to the deceased, and in presence of defendant, and exclaimed, "Oh, Lord! Fred has killed Cass, the best friend he had in the world, and killed him for nothing." When this statement was repeated by the witness Clark, the counsel for the defendant interposed:

"I want to ask that any declaration here by a third party be excluded from the record and the jury instructed to disregard it."

The judge refused the request for two reasons: First, because the same witness had previously repeated the exclamation in answer to the district attorney and no objection was made, and three other witnesses had already testified without objection to the same statement. The testimony having gone to the jury without objection, it was not within the power of the judge to keep the jury from considering it.

The second reason given by the judge is that the exclamation made by the defendant's mother was spontaneous, there being no appreciable time between the striking of the deceased by the defendant and the utterance of the mother, and hence formed a part of the res gestae.

We do not find it necessary to decide, and do not decide, whether or not the exclamation made by the mother of the defendant was of the res gestae and could be given in evidence by a third party who was present and heard it.

In the recent case of State v. Davis, 162 La. 500, 110 So. 733, the authorities on the subject were reviewed, and it was held that, where the evidence sought to be introduced is of events and remarks speaking through the participants or observers, such evidence is admissible as constituting a part of the res gestae, but that remarks made by observers about the event after it happened, and who undertake to state what had occurred and in what manner it occurred, were not part of the res gestae.

We prefer to rest our affirmance of the ruling on the first reason given by the judge.

Bill No. 4. A state witness had testified that the defendant and the deceased were drunk, whereupon the defendant wanted to know who else in the crowd was drunk. The court refused to permit the witness to answer the question, and rightfully so.

The fact, if it were true, that other people present, and who had no part in the difficulty, and who had not been called as witnesses, were drunk, could have no possible effect for or against the accused, and could shed no light on the issue under inquiry.

Bill No. 5. A witness, Theodore Perkins, was placed on the stand and examined by the state and cross-examined by the defendant at great length. On his first cross-examination the witness had stated that he had attempted to strike the defendant by throwing a stick at him after the defendant had knocked the deceased down and was about to "stomp" him. The subject of the stick was not referred to either in the direct or redirect examination by the state, but on the recross-examination the witness was asked where he got the stick which he threw at the defendant.

An objection of irrelevancy was interposed and sustained.

Neither the bill nor the evidence of the witness attached thereto suggest any abuse of the right of the judge to put an end to an unreasonable and apparent purposeless cross-examination. The question of where the witness got the stick which he threw at defendant after the latter had struck the fatal blow was wholly immaterial.

Bill 6. Riley Doyal had testified before the coroner's jury that on the night of the killing Fred Ashworth, the defendant, stepped off the porch into the yard, walked over and picked up a 2x4 club, and then turned back toward the walk and hit Cass Perkins.

The witness, having been sworn for the state, on cross-examination by defendant, denied that he saw defendant pick up the stick and strike the deceased, and further stated that it was too dark on the occasion of the homicide for one to see another pick up a club.

Whereupon the district attorney, being taken by surprise, asked the witness if he had not sworn before the coroner's jury that he saw the defendant pick up a 2x4 club. To which question the defendant objected for the reason that it was an attempt by the state to impeach its own witness.

The objection was overruled, and the witness answered in the affirmative.

The counsel does not stress this bill in his brief, merely noting that such a bill was reserved.

There was no error in the ruling.

In State v. Williams, 111 La. 179, 35 So. 505, this court said:

"It is well settled that, where a party is surprised by the unexpected testimony of his witness, he may be permitted to interrogate as to previous declarations inconsistent with the testimony given; the object being to test the recollection of the witness, and lead him, if mistaken, to review what he has said."

Bill 7. A state witness, Arthur Perkins, was asked, on cross-examination, "Who went after the doctor for Cass Perkins?" which was objected to as irrelevant and immaterial, and the objection was sustained. It was not contended that the defendant sent...