State v. Barnhart

• Decision Date: 27 May 1918
• Docket Number: 23044
• Citation: State v. Barnhart, 143 La. 596, 78 So. 975 (La. 1918)
• Court: Louisiana Supreme Court
• Parties: STATE v. BARNHART

78 So. 975

143 La. 596

STATE v. BARNHART

No. 23044

Supreme Court of Louisiana

May 27, 1918

SYLLABUS

(Syllabus by the Court.)

Where upon a trial for murder, the indictment charges the offense as committed upon a certain day, and a witness for the prosecution is allowed to testify, over objection, that the deceased was killed prior to a certain earlier date, the objection is properly overruled, since, time not being of the essence of the crime charged, the state is not restricted in its evidence to the date set out in the indictment, but is at liberty to show that it was committed at any time prior to the finding of the indictment and within the period of prescription.

But where, upon a trial for murder, the state introduces evidence showing that the offense was committed several months earlier than as charged, though such evidence may properly be admitted, for the reason that it is not necessary to give a specific date, as time is not of the essence of the offense, that reason is not sufficient to sustain a ruling refusing the defendant a delay to enable him to prepare a defense against a charge other than that which he has been called into court to meet.

A ruling sustaining an objection to a question propounded, on cross-examination, to a state witness in a criminal case, may be erroneous, and yet not show such prejudice to the rights of the defendant as to warrant the setting aside of the conviction.

A prosecuting officer is entitled to form, and to express to the jury in a criminal case, his own opinion as to what has been made evident on the trial, and it is for the trial judge to determine whether he keeps within the record. The mere recital, in a bill of exceptions, that the district attorney stated that such a fact was evident, does not enable the court to determine whether the fact was evident or not, and, in the absence of the entire record, with the evidence, the statement of the trial judge that the district attorney kept within the record is conclusive of that question.

Murff & Mabry, of Shreveport, for appellant.

A. V. Coco, Atty. Gen., and Harmon C. Drew, Dist. Atty., of Minden (Vernon A. Coco, of New Orleans, of counsel), for the State.

OPINION

MONROE, C. J.

This is an appeal from a conviction of murder, without capital punishment, and sentence therefor.

It appears that, on the trial, a witness called by the state was asked 'if deceased was killed, and, if so, when and where?' that defendant objected to his testifying to any other date than February 5, 1918, as charged in the indictment, on the ground that his defense was an alibi, and he was not prepared with respect to any other date, which objection was overruled 'because' (as stated by the judge) it was 'not necessary to give specific date, as time was not of essence in charge of murder'; and, the witness having testified that deceased was killed 'some time before Christmas, 1917' a bill was reserved, and defendant (according to the recitals of another bill) 'immediately moved the court for a continuance * * * until such time as he could prepare his defense to meet the date of some time before Christmas in the year 1917,' as fixed by said witness, whereas the indictment specified February 5, 1918, and which said indictment the district attorney did not offer to amend, but stood on said date of February 5, 1918, regardless of the evidence showing the date of the death of the deceased to be some time before Christmas in the year 1917; that defendant was not prepared to meet the charge of murder both of date 'some time before Christmas in the year 1917' and also on the 5th of February, 1918, for the reason that the state's case depended entirely on circumstantial evidence, and the defense was an alibi, * * * but the court refused the continuance, and ordered the trial to proceed, for the following reasons, to wit: 'Same reason as in bill 1.'

It is true that, although some time must be stated in an indictment charging murder, the state is not restricted in its evidence to the date charged, but may prove that the crime was committed upon any other day, prior to the finding of the indictment and within the period of prescription. 22 Cyc 451; Marr's Crim. Jur. of La. p. 400; R. S. 1063; Bishop's Cr. Pr. § 400; State v. Kane, 33 La.Ann. 1269; State v. Anderson, 136 La. 261, 66 So. 966. But it does not follow that, because the state enjoys that privilege, the defendant has no rights which are to...