State v. Braxton
| Decision Date | 01 December 1924 |
| Docket Number | 26325 |
| Citation | 103 So. 24,157 La. 733 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. BRAXTON |
Rehearing Denied February 2, 1925
Original Opinion of December 3, 1923, Reported at 157 La. 733, 103 So 24.
OPINION On Rehearing.
The defendant appealed fro a conviction and sentence for the crime of shooting with intent to commit murder.
The case was submitted to Division A, and the judgment rendered therein annulled the verdict and sentence, and remanded the case for a new trial. On the application of the state a rehearing was granted, and the case is now submitted to the court en banc.
It is correctly stated in the original opinion that the only question in the case is whether the judge should have charged the jury, without being requested to do so, that the defendant might be found guilty of the crime of shooting with intent to kill. In the body of the opinion it is said:
"Inasmuch as the judge would not have given the charge if it had been requested, we cannot reasonably hold that the defendant should suffer for omitting the futile request."
In view of the judge's per curiam to bill No. 4, we do not think the facts support the court's assumption that the charge would have been refused if properly and timely requested. The judge says:
It is the settled law of this state that the judge must be given an opportunity to correct his charge at the time of its delivery. State v. Bush et al., 117 La. 463, 41 So. 793; State v. McCrocklin, 130 La. 106, 57 So. 645; State v. Miller, 125 La. 254, 51 So. 189; State v. Salter, 48 La.Ann. 197, 19 So. 265; State v. Laborde, 48 La.Ann. 1491, 21 So. 87; State v. Dudoussat, 47 La.Ann. 977, 17 So. 685; State v. Thomas, 34 La.Ann. 1084.
In this case no request was made for a special instruction, and no objection was noted to the whole or to any part of the charge given. In criminal cases this court can only review errors which are patent on the face of the record, or such as are brought before it through bills of exception properly and timely taken.
The jurisprudence of the state is that, except where the accused is charged with murder, it is not the duty of the judge to enumerate the lesser grades of the same generic class of crimes or to instruct the jury with reference to any lesser grade thereof, unless the evidence offered in the case warrants such a charge. State v. Kemp, 120 La. 378, 45 So. 283; State v. O'Connor, 119 La. 464, 44 So. 265; State v. Johnson, 116 La. 30, 40 So. 521; State v. Parks, 115 La. 765, 40 So. 39; State v. Fruge, 106 La. 694, 31 So. 323; State v. Pastor, 111 La. 717, 35 So. 839; State v. Matthews, 111 La. 962, 36 So. 48.
In a prosecution for murder the judge must, regardless of the proof or the want of proof, charge the jury that the defendant may be convicted of manslaughter. Section 785 of the Revised Statutes makes it the duty of the judge to do so, and this court has so often and so consistently held the judge to the performance of that duty that it is needless to cite those authorities.
In State v. Birbiglia, 149 La. 4, 88 So. 533, the court suggests a reason for this rule, and in the original opinion herein the court found that reason as appropriate in a prosecution for shooting with intent to commit murder as in a prosecution for murder. That view is inconsistent with the authorities cited supra, and with the two cases reviewed in the original opinion, viz., State v. Marqueze, 45 La.Ann. 41, 12 So. 128; and State v. Wright, 104 La. 44, 28 So. 909. In both of these cases it is held that in prosecutions for shooting with intent to commit murder the defendant waives his right to complain, if he does not, before a verdict is rendered, request the judge to charge the jury that a verdict of shooting with intent to kill would be a responsive verdict.
On reconsidering this case we are of the opinion that the accused had a fair trial and that no reversible error is found in the record. For these reasons the judgment of this court heretofore rendered herein is avoided, and it is now ordered, adjudged, and decreed that the verdict and sentence appealed from are affirmed. Appellant is reserved the right to apply for a rehearing.
O'NIELL, C. J. (dissenting).
The defendant was prosecuted under an indictment accusing him of shooting a man named Tom Smith, with intent to commit murder and was found guilty as charged.
The defense was a plea of self-defense. The main question presented on this appeal is whether the judge should have instructed the jury that a verdict convicting the defendant of the crime of shooting with intent to kill would be responsive to the indictment, if, in the opinion of the jury, the evidence in the case justified such verdict, or if there was a reasonable doubt that the shooting was done with malice. The defendant did not request that the charge should be given. But that is a matter of no importance in this case, because the judge admits, in his statement per curiam, that his reason for omitting the charge was, not that the defendant did not request it, but that he, the judge, was of the opinion that the evidence did not warrant a verdict of guilty of shooting with intent to kill.
It was said in the opinion originally rendered in this case that the judge would not have given the charge if he had been requested to give it. There was no mistake in that statement. It was taken from the record. and on the assumption that the judge would have been consistent. He argued extensively, in his statement per curiam, that he should not have given the charge, because, in his judgment, the evidence, which he narrated, did not warrant a verdict of guilty of shooting with intent to kill. The judge's statement, in that respect, was quoted in our original opinion in this case. It is true the judge did say, after explaining why he should not have given the charge if it had been requested, that the defendant should have made the request. But that was only a matter of argument on the part of the judge, which, I respectfully submit, was not consistent or well founded. I repeat, therefore, that the defendant should not be blamed or prejudiced for having failed to make a prompt request or complaint, when the judge frankly admits that it would have been a vain and futile request or complaint if it had been made more promptly.
I respectfully call attention to the fact that the opinion which has been submitted for our approval in this case, on rehearing, is inconsistent, in that it embodies two irreconcilable propositions. First, it is assumed that the judge would have given the charge if the defendant had requested it, and then it is said that the judge should not have given the charge, when the evidence, in his judgment, did not justify it. First, it is said:
"In view of the judge's per curiam to bill No. 4, we do not think the facts support the court's assumption that the charge would have been refused if properly and timely requested."
Then it is said:
"The jurisprudence of the state is that, except where the accused is charged with murder, it is not the duty of the judge to enumerate the lesser grades of the same generic class of crimes, or to instruct the jury with reference to any lesser grade thereof, unless the evidence offered in the case warrants such a charge."
The cases cited in support of this last statement, in the opinion which has been submitted for our approval, are all cases in which the defendant asked for a special charge and the judge refused it, because, in his opinion, the evidence did not justify it. Of course, the judge cannot be compelled to give the jury a special charge or instruction upon a proposition of law not relevant to the issues in the case. Therefore, when there is no evidence at all to which the jury might apply a proposition of law to be given in a special charge or instruction requested by the defendant, the judge should not give the charge. In a word, the judge should not waste the time of the court and becloud the issues with instructions upon abstract or irrelevant principles of law.
But the doctrine of the decisions referred to does not make the judge the judge of questions of fact pertaining to the question of guilt or innocence of the party accused. It does not allow the judge to decide upon the weight or sufficiency of the evidence in the case, or upon the veracity of the witnesses, for that is forbidden by the Constitution itself. If there is any evidence at all upon an issue of fact upon which the jury might come to one conclusion or another, the judge should instruct the jury upon the law applicable to both or either of the hypotheses.
In a prosecution for the crime of shooting with intent to murder if the defendant pleads that the shooting was done in self-defense, the question whether it was done maliciously or only in the heat of passion is a question for the jury to decide, as surely as is the question whether the shooting was done feloniously or in self-defense. In every case of felonious shooting of a person, if the prosecution be for malicious shooting, as in this case, the question whether there was or...
To continue reading
Request your trial