State v. Braxton

• Decision Date: 03 December 1923
• Docket Number: 26325
• Citation: 157 La. 733,103 So. 24
• Court: Louisiana Supreme Court
• Parties: STATE v. BRAXTON

103 So. 24

157 La. 733

STATE v. BRAXTON

No. 26325

Supreme Court of Louisiana

December 3, 1923

On Rehearing December 1, 1924; Rehearing Denied February 2, 1925

Appeal from Fifteenth Judicial District Court, Parish of Beauregard Thomas F. Porter, Jr., Judge.

Robert Braxton was convicted of shooting with intent to commit murder, and appeals.

Affirmed on rehearing.

P. L Ferguson, of Leesville, and Sam H. Jones, of De Ridder, for appellant.

A. V Coco and Percy Saint, Attys. Gen., Griffin T. Hawkins, Dist. Atty., and John J. Robira, Asst. Dist. Atty., both of Lake Charles (T. S. Walmsley, of New Orleans, and A. J. Bordelon, of Marksville, and Percy T. Ogden, of Crowley, of counsel), for the State.

OPINION

O'NIELL, C. J.

Appellant was convicted of shooting a man with intent to commit murder. The crime is made such by section 791 of the Revised Statutes, as amended by Act 43 of 1890, p. 37. The only question in the case is whether the judge should have charged the jury -- without being especially requested to charge -- that the defendant might be found guilty of the crime of shooting with intent to kill. The latter crime is denounced by Act 44 of 1890, p. 37.

The difference between the two crimes is the same as the difference between murder and manslaughter. Malice is an essential element of the one but not of the other crime. In a prosecution for murder, no matter what the evidence or proof is, the judge must, without regard for any request from the defendant, instruct the jury that the defendant may be convicted of manslaughter. Rev. Stat. § 785. A failure of the judge to give the charge will vitiate a conviction of murder, even though no exception was taken before the verdict was rendered. State v. Obregon, 10 La.Ann. 799; State v. Shields, 11 La.Ann. 395; State v. Brown, 40 La.Ann. 725, 4 So. 897; State v. Brown 41 La.Ann. 410, 6 So. 670; State v. Clark, 46 La.Ann. 704, 15 So. 83; State v. Jones, 46 La.Ann. 1395, 16 So. 369; State v. Thomas, 50 La.Ann. 148, 23 So. 250; State v. Hicks, 113 La. 779, 37 So. 753; State v. Parks, 115 La. 765, 40 So. 39; State v. Cook, 117 La. 116, 41 So. 434; State v. Kinchen, 126 La. 39, 52 So. 185; State v. Birbiglia, 149 La. 4, 88 So. 533.

The reason for the rule was mentioned in the case last cited (State v. Birbiglia), viz:

"The reason why the judge must instruct the jury, in all prosecutions for murder, that they may render a verdict of manslaughter, is that his failure to do so would leave the jury with no other alternative than to convict the defendant of murder or acquit him entirely. It would be the same as for the judge to instruct the jury as to what the evidence in the case was; whereas the judge has no right to comment upon the facts or evidence in the case. In State v. Hicks, 113 La. 779, 37 So. 753, the judge's charge was declared erroneous, because he instructed the jurors that, although they had the power to render a verdict of manslaughter in the case, if they did so, it would be without his consent. That was the same as to tell the jurors that, under the evidence, they had no other alternative than to find the defendant guilty of murder or not guilty."

The reason for the rule makes it as appropriate in a prosecution for shooting with intent to commit murder as it is in a prosecution for murder. It is true there are two decisions to the effect that, in a prosecution 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 conviction of shooting with intent to kill would be a responsive verdict. See State v. Marqueze, 45 La.Ann. 41, 12 So. 128, and State v. Wright, 104 La. 44, 28 So. 909. The opinion rendered in the Marqueze Case is not at all persuasive; and, in the Wright Case, the court intimated that the decision would not be followed as a precedent; viz:

"We deem this, however, an opportune occasion to admonish district judges that they should, in all cases where the law permits of other conclusions than that of simple 'guilty' or 'not guilty,' carefully instruct the jury as to the several verdicts that may be responsive to the indictment."

The ruling in the case quoted was founded upon the statement of the district judge that the defendant and his attorney had tacitly consented -- and virtually requested -- that the jury should not be instructed that a verdict of guilty of shooting with intent to kill would be a responsive verdict. The instruction would have been given if the defendant or his attorney had requested it. We quote again from the opinion, viz.:

"The judge, in the bill, says the failure to charge that other verdicts than that of 'guilty,' or 'not guilty,' could be found, was an oversight, but that neither defendant nor his counsel, both present at the time, raised any objection, and that, at the close of the charge, to the inquiry from the bench whether or not he desired any special charge given, counsel replied in the negative."

On the contrary, in the case before us, the district judge virtually admits that he would not have instructed the jury that a verdict of guilty of shooting with intent to kill would be a responsive verdict, if the defendant or his attorney had asked for the instruction. In overruling the motion for a new trial the judge said that his reason for not instructing the jury that a conviction of the crime of shooting with intent to kill would be a responsive verdict was that the evidence in ...