State v. Boudreaux

• Decision Date: 12 April 1915
• Docket Number: 20962
• Citation: 68 So. 422,137 La. 227
• Court: Louisiana Supreme Court
• Parties: STATE v. BOUDREAUX

68 So. 422

137 La. 227

STATE v. BOUDREAUX

No. 20962

Supreme Court of Louisiana

April 12, 1915

Rehearing Denied May 10, 1915

SYLLABUS

(Syllabus by the Court.)

It is discretionary with the trial court to permit or to refuse to permit a plea of not guilty to be withdrawn, in order to enable defendant to set up a dilatory or formal defense, and his ruling will not be disturbed.

Where counsel for defendant in a criminal case take issue with the trial judge, upon a question of fact, concerning which the record is otherwise silent, the statement per curiam attached to the bill of exception, will be accepted by this court as conclusive.

Where, upon its face, a bill of exception, reserved in a criminal case, shows that the trial judge has gone rather far in reprimanding counsel, it is desirable that the statement of the judge should set forth the reason for his action.

The materiality of testimony sought to be elicited in chief from a defendant, on trial for murder, as to whether, several hours before the killing, he had any idea that he was going to kill the deceased, may depend upon a variety of circumstances, and a bill, which merely recites that an objection to such testimony was sustained, discloses no reversible error.

The question, whether the trial judge, in a murder case, is bound to allow evidence of prior threats to go to the jury, together with any evidence, however flimsy and incredible, in his opinion, to the effect that, by reason of the action of the deceased, at the time of the killing, the defendant had reasonable cause to believe, and did believe, that he was threatened by the deceased with, and was in danger of, death or great bodily harm, is answered in the negative by the established jurisprudence of this court; and we adhere to that jurisprudence.

Where, to a bill of exception, reserved, in a murder case, to the exclusion of testimony, sought to be introduced to show prior threats by the deceased, there is attached what appears to be a fragment of the testimony given by the defendant to prove an overt act, committed by the deceased, at the time of the killing, but no other testimony adduced on the trial, this court is not placed in a position intelligently to review the immediate question sought to be presented by the bill.

Robira & Miller, of Jennings, for appellant.

R. G. Pleasant, Atty Gen., T. A. Edwards, Dist. Atty., of Lake Charles (G. A. Gondran, of New Orleans, of counsel), for the State.

O'NIELL, J., dissents, and hands down reasons.PROVOSTY, J., dissents for the reasons handed down by O'NIELL, J.

OPINION

MONROE, C. J.

Defendant prosecutes this appeal from a conviction of, and sentence for, manslaughter, under an indictment for murder.

The record discloses a bill of exception to the refusal of the court to permit defendant to withdraw the plea of not guilty, in order to enable him to file motions to quash the indictment and the de talibus venire, and two other bills, to the refusal to permit him to file those motions.

His counsel now state, in their brief, that bill No. 3 (which relates to the venire) is abandoned. The motion to quash the indictment sets out, as the ground relied on, that the grand jury assembled in a large room which is separated from the courtroom by a thin partition, and that they might have been overheard by persons in the courtroom, and might, themselves, have heard conversations between the persons so situated. It is not suggested that any such overhearing actually took place.

'It is wholly in the discretion of the court to permit a plea of any sort to be withdrawn. * * * Thus, it is discretionary with the court to permit or refuse to permit a plea of not guilty to be withdrawn. * * * The rule applies also to pleas of guilty. * * *' 12 Cyc. 350f; State v. Williams, 45 La.Ann. 1357, 14 So. 32, citing Bish. Cr. Jur. (3d Ed.) § 124.

There was no error in the ruling complained of.

A bill was reserved to the ruling of the court, sustaining an objection to the question (propounded to the defendant, who had taken the stand):

'Were you on duty that night as policeman in the town of Elton, La.?'

The judge adds to the bill the following:

'The testimony objected to afterwards went to the jury without objection. Defendant, if the court erred in the ruling, therefore suffered no injury.'

Counsel for defendant takes issue with the judge, thinks he is mistaken in saying that the testimony objected to went to the jury, and appeals to 'the record as sent up.' But the record contains nothing upon the point at issue, save the bill, drawn by the counsel, and the statement above quoted, written by the judge, which controls the situation.

Bill No. 5 shows that, the court having sustained the state's objection to the question (propounded to defendant by his counsel):

'Mr. Boudreaux, at the time you left your home that evening, in search of your family, say, about 7 o'clock, did you have any idea that you were going to kill Tom Boudreaux?'

Defendant's counsel requested permission to have his reasons for asking the question reduced to writing; whereupon the district attorney objected to the giving of any of the reasons in the presence of the jury.

'Counsel for defendant then and there stated that, if the district attorney objected for the jury to hear said reasons, that the court order the jury withdrawn; that he desired the record complete and full; that the Honorable Alfred M. Barbe, presiding, then proceeded to lecture counsel for defendant, by saying that counsel was not playing fair with the court; that the court had granted his request, but that, now, counsel had changed his reasons, all of which lecturing and chastising of counsel took place in the presence of the jury; that counsel for defendant thereupon excepted to said chastising and reserved a bill of exception,' etc.

The statement per curiam is:

'Covered by bill 7. Any reprimand given Mr. Robira was justified by his conduct.'

The 'bill 7,' referred to, was reserved to the ruling of the court sustaining the objection of the counsel for the state to the question propounded to defendant by his counsel, as above set forth; and the statement of the court, made part of that bill, is:

'The killing occurred several hours after Boudreaux left home.'

Bill No. 5 relates exclusively to a matter of court discipline between the counsel and the judge, concerning which it is to be regretted that our brother of the district court has not made his statement more definite, as, upon the face of the papers, he seems to have gone rather far. We are unable to say that there was any error (counsel have pointed out none) to the prejudice of defendant in the ruling presented by bill No. 7. Intervening circumstances may have made it wholly immaterial whether the defendant had any idea, several hours before the event, that he was going to kill the deceased, and, in the absence of something to the contrary, we must assume that those circumstances were disclosed by the evidence.

Bill No. 6 shows that, defendant being on the stand as a witness in his own behalf, his counsel asked him whether 'the deceased, Tom Boudreaux, had threatened his life, the day previous to, and on the day of, the homicide,' to which, the district attorney objected, on the ground that no hostile demonstration had been shown; whereupon the jury was withdrawn, and defendant was allowed to testify, in the presence of the judge, and his testimony, as taken down, is attached to the bill, and, in so far as it is material to the issue here presented, is to the following effect, to wit:

We was walking home, at night, accompanied by his wife and carrying upon his left arm his child, a girl between two and three years of age, when he saw the deceased, who was his wife's brother, coming towards him, from the direction of the light, which the witness was facing; it being otherwise rather dark. The deceased had something in his right hand, which witness thought was a 'gun.' He thought it was a gun because he did not think that deceased would have come at him that night without a gun, 'as he had been threatening. * * *' When deceased reached witness, he pushed witness with his 'left hand' (afterwards, 'left arm'), turned him about three-quarters around; pushed violently. He then said, 'What in the hell have you done to Cecile' (the wife and sister)? To which witness replied: 'I accidentally hit her. Allow me to explain.' Deceased then pushed him again and witness saw him bring his right hand around from behind, with the 'object' in it. Whereupon witness fired twice. Witness heard some one say: 'Go after him! I am with you.' But 'could not recognize from that distance,' as he was directly against the light. He fired because he feared harm for himself and child; and he feared because deceased had threatened, on 'Sunday evening,' saying that he would resort to the gun. Mr. Horn had told him, also, that Tom (the deceased) wanted him (Horn) to go over and pack up witness' stuff, and wanted him there as a witness. On cross-examination, he said: That deceased assaulted him, the first time, 'very violently' (by pushing him with his 'left arm'); did not knock witness down. Deceased had no pistol in his right hand. Witness drew his 'gun' when deceased asked, 'What have you done to Cecile?' It came to his mind that deceased had said that any time that he (witness) did anything to his (deceased's) family he would kill him. Had not worked with deceased on Sunday. The affair with his wife was accidental; heard her crying; did not hear her scream; did not see blood on her face, but heard her speak of it; did not shoot until deceased said:

'Everything will be settled right here.' Q. And you shot him? A. Yes. Q. You did not see him attempt to kill you, and...