State v. Bankston

• Decision Date: 12 March 1928
• Docket Number: 29055
• Court: Louisiana Supreme Court
• Parties: STATE v. BANKSTON et al

116 So. 565

165 La. 1082

STATE v. BANKSTON et al

No. 29055

Supreme Court of Louisiana

March 12, 1928

Rehearing Denied April 9, 1928

Appeal from Twenty-Second Judicial District Court, Parish of Washington; Prentiss B. Carter, Judge.

Earlie Bankston and Fred Morris were convicted of robbery, and defendant last named appeals.

Affirmed.

J. H Inman, of Ponchatoula, and A. J. Hollander, of New Orleans for appellant.

Percy Saint, Atty. Gen., C. Sidney Frederick, Dist. Atty., of Covington, and E. R. Schowalter, Asst. Atty. Gen. (B. D. Talley, of Bogalusa, of counsel), for the State.

THOMPSON, J. O'NIELL, C. J., and ST. PAUL and ROGERS, JJ., dissent.

OPINION

THOMPSON, J.

The two defendants were charged with robbery, that is to say, in common parlance, with holding up one Robert McGee and forcing him to turn over to them $ 3,500 which the said McGee held in trust for the Great Southern Lumber Company.

Bankston pleaded guilty, and a jury of his own selection declared by its verdict that Morris was likewise guilty.

From a sentence to hard labor in the penitentiary, Morris appeals.

His counsel reserved seven bills of exception, but only four of them are mentioned in counsel's brief.

We have examined the three not discussed (bills 4, 5, and 7) and find no merit in them.

Bill No. 1.

Bankston was placed on the stand by the state, examined in chief, and tendered to defendant for cross-examination.

The cross-examination was quite lengthy, and after redirect examination, the witness was discharged, and court adjourned for the day. When the case was resumed the next morning, counsel for defendant requested that the witness be recalled for further cross-examination.

The bill recites that matters were brought out for the first time on redirect examination, and that it was on such new matters the cross-examination was desired. The court, however, states that the recall of the witness was for the purpose of laying a foundation for impeaching him, and denied the request.

It matters not for what purpose the recall was desired, the rule is now well settled that the matter rests within the sound discretion of the trial judge, and his ruling will not be reversed unless it is made clear that such discretion has been abused. No such case is presented here. It is not suggested either in the bill or in the brief that the matters on which further cross-examination was desired were pertinent to the question of the guilt or innocence of the accused. State v. Bradford, 164 La. 423, 114 So. 83.

Bill No. 2.

Bankston testified to having made four statements concerning the robbery, three of which were made under oath.

He testified that the first statement, or the original statement, was under oath and in writing, and was a true statement. Thereupon, counsel for the defendant, for the purpose of cross-examination, requested the court to order the district attorney to deliver to the defendant such original sworn statement.

The district attorney stated that he did not have such statement in his possession or under his control. In view of this statement, the judge declined to order the production of the document.

The district attorney, at the request of counsel for defendant, was then sworn, and testified that he had in his possession an affidavit signed by Bankston which contained a statement implicating Fred Morris in the robbery. He did not know who had procured the affidavit, and that he merely held and used it as a memorandum to refresh his memory of Bankston's statement. The defendant then renewed his request for the production of the document, and which was again refused by the court.

Pretermitting for the moment the question of the right of the defendant to compel the production of the affidavit, we are unable to conceive of any legitimate purpose to be attained by the production of the affidavit.

The person who had made the affidavit was, at the time it was called for, on the stand and subject to cross-examination. He had admitted making four statements at different times concerning the robbery, and had testified that the first statement, made under oath, was the true statement.

It is not suggested in the bill that the document was wanted for the purpose of laying a foundation for impeaching the witness, nor to be introduced and used as evidence. Whether the affidavit exonerated or implicated the defendant Morris, it could not have been admitted in evidence, either for or against him, because it was purely hearsay, and because of the further fact that the one who made it was then on the witness stand. The witness had testified that the first affidavit was true; hence if the affidavit had been produced, it could not have added to or detracted from the testimony he had given on the stand.

The argument of defendant seems to be based on the contention that the affidavit was a public instrument andany person was entitled to inspect and examine it.

Our conclusion is that the affidavit was not a public document, nor a matter of public record, but was the property of the state, and that the district attorney could not be compelled to turn it over to the counsel for the defendant.

The rule stated in the Am. & Eng. Ency. of Law, vol. 23, p. 179, under the title of "Production of Documents," subtitle, "Fishing Examination," is that the courts uniformly decline to grant an application for production and inspection where it is merely for the purpose of a fishing examination, as where it is made to discover whether or not there is evidence contained in the document which will be useful to the applicant, etc.

And in Corpus Juris, vol. 16, p. 858, it is said to be a general rule of criminal law that defendant has no right to inspect a document or article in the possession of opposing counsel, but which is not offered in evidence.

Our own jurisprudence furnishes a case quite similar to the instant one. We refer to the case of State v. Simon, 131 La. 520, 59 So. 975.

In that case the defendant was on trial for murder, and a state witness had said on cross-examination that he had testified on two previous occasions, a first time in the district attorney's private office, and a second time on the preliminary examination of the case, and that his testimony had been the same as it was then, and had been taken down in writing. The counsel for the defendant orally and in open court called upon the district attorney to produce the testimony given in his private office. The district attorney would not do so, and the court refused to compel him, although counsel stated that the object was to impeach the witness by showing that the said testimony was different from that on the trial.

In that case, as in the present case, it was contended that the document was a public document, and that the defendant was entitled to access to it. This court held:

"That the document was not a public document; but even if it had been, and even if the ruling denying access to it had...