State v. Brown

• Decision Date: 02 March 1931
• Docket Number: 30985
• Citation: 133 So. 383,172 La. 121
• Court: Louisiana Supreme Court
• Parties: STATE v. BROWN

133 So. 383

172 La. 121

STATE v. BROWN

No. 30985

Supreme Court of Louisiana

March 2, 1931

Rehearing Denied March 30, 1931

Appeal from Fourteenth Judicial District Court, Parish of Beauregard; Thomas F. Porter, Judge.

Alzada Brown was convicted of murder, and she appeals.

Affirmed.

Hawkins & Pickrel, of Lake Charles, for appellant.

Percy Saint, Atty. Gen., John J. Robira, Dist. Atty., and S. H Jones, Asst. Dist. Atty., both of Lake Charles, and E. R Schowalter, Asst. to Atty. Gen., for the State.

ODOM J. O'NIELL, C. J., dissents.

OPINION

ODOM, J.

Defendant shot and killed her husband and was indicted for murder. Upon trial she was convicted of murder without capital punishment and sentenced to life imprisonment at hard labor. She appealed from the verdict and sentence.

The errors complained of are set out in eight bills of exception, which we dispose of in the order presented.

1. While a prospective juror was being examined on his voir dire, he was asked by counsel for defendant if he had any prejudice against the law of self-defense. The question was objected to by the state on the ground that the juror was not supposed to know the law of self-defense, as he had not then received instructions on the law by the trial judge. The objection was sustained, and counsel for defendant, conceding that the ruling was correct, then propounded to the juror the following question:

"Have you any prejudice against the law of self defense, and I couple with the question a request that the court explain the law of self defense to the juror."

The court refused to explain the law at that time, for the reasons that the prospective juror had already stated, and at the time said he would follow the law as given him in charge by the court, and that he would do that whether he approved the law or not, or whether or not he thought the court correctly stated the law, and for the further reason that the proper time for the court to explain the law to the jurors is in his charge to be given after the case is argued and submitted. Counsel for defendant excepted to the ruling of the court and reserved a bill.

The ruling of the court is correct. The answer of the juror to the questions propounded to him shows that he understood that it was his duty to take the law as expounded by the judge. He said he would do that. That was all defendant had a right to expect and demand. It is not the duty of the trial judge to go into detail and explain to a prospective juror who is being examined on his voir dire all of the different phases of the law which may be applicable to the case on trial. The time for him to do that is after the testimony is closed, and the case is argued and submitted by the state and the accused. This identical question was before the court in the case of State v. Sinigal et al., 138 La. 469, 70 So. 478, where it was held, to quote paragraph 3 of the syllabus written by the court:

"A request on behalf of defendant that the judge charge the juror, who is under examination on his voir dire, as to the law of self-defense, was properly refused; the charge should be made after the case has been tried, and the arguments heard."

2. Bill No. 2 was reserved to the ruling of the court permitting the prosecuting attorney to ask a witness called by him on behalf of the state the following questions:

"Isn't it a fact that you testified before the grand jury concerning certain statements that Alzada Brown made about the shooting after you got in the house?" and "Now, for the purpose of refreshing your memory, Mr. McNeal, didn't you testify before the coroner's jury that 'I came immediately through my house to the street and back to Jim Brown's house'?"

Counsel for defendant objected to these questions on the ground that the state was attempting to impeach its own witness without pleading surprise.

Article 487 of the Code of Criminal Procedure reads as follows:

"No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements."

This is but a restatement of the rule laid down by all text- writers and consistently adhered to by this court. But the state was not attempting to impeach its own witness. The trial judge in his per curiam to this bill said: "Counsel for the state was merely trying to refresh thewitness's memory about the subject matter of the examination." This is made evident by the questions themselves. The witness answered that he had given no such testimony, and no witnesses were called to contradict him.

In the case of State v. Nash, 169 La. 947, 126 So. 434, 435, after referring to article 487 of the Code of Criminal Procedure, the court said:

"It is also well settled that, where a party is bona fide surprised at the unexpected testimony of the witness whom he has voluntarily called, he may be permitted to interrogate him as to his previous declarations inconsistent with the testimony given, the object being to test the witness' recollection, and lead him, if mistaken, to review what he has said. To ask a witness a question for the purpose of refreshing his memory is not to impeach him." -- citing Marr's Criminal Jurisprudence, vol. 2, page 991, § 648, paragraph 3.

The court's ruling was correct.

3-7. We consider these bills together, as they pertain to the exclusion by the trial court of certain testimony sought to be introduced by defendant.

The defendant was charged with murder and pleaded self-defense, and, in the alternative, that the crime, if any had been committed, was manslaughter and not murder. She sought to introduce evidence of the dangerous character of the deceased, and that prior to the fatal shooting he had made threats against her. This testimony was excluded by the court for the reason that in his opinion there had been no proof of a hostile demonstration or overt act on the part of the deceased.

Article 482 of the Code of Criminal Procedure reads as follows:

"In the absence of proof of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible."

The settled jurisprudence of this state is that, in a prosecution for murder, evidence of the dangerous character of the deceased and of prior threats by him against the accused is inadmissible until and unless an overt act or hostile demonstration by him toward accused has been proved to the satisfaction of the trial judge. State v. Dreher, 166 La. 924, 118 So. 85; State v. Harvey, 159 La. 674, 106 So. 28; State v. Poole, 156 La. 434, 100 So. 613; State v. Benoit, 144 La. 276, 80 So. 329; State v. Boudreaux, 137 La. 227, 68 So. 422; State v. Varnado, 131 La. 952, 60 So. 627.

And while this is true, it is also well settled that, if a trial judge, after hearing the testimony offered in support of the accused's contention that deceased was guilty of hostile demonstrations or an overt act, decides that no overt act was committed, his ruling on that question is subject to review by this court on appeal. State v. Dreher, State v. Harvey, State v. Poole, State v. Benoit, supra, and State v. Clark, 142 La. 282, 76 So. 714.

The testimony relied upon by counsel for accused in support of her contention that deceased was guilty of hostile demonstrations toward her and of an overt act was attached to these bills of exception and is before us for review.

The only testimony brought up which tends to establish the overt act is that of Will Wright, L. W. Cooper, Eva Lewis, and the defendant, Alzada Brown. The testimony of Will Wright is to the effect that defendant told him after the shooting that she killed her husband because he kicked her. L. W. Cooper, a deputy sheriff, testified that accused told him after she was arrested that deceased was drunk and went into the kitchen where she was and kicked her; that he crossedthe room and went back to get a gun; that the gun had been removed by her and was in another room, "and that while Jim (the deceased) was hunting the gun she got it"; that she had moved the gun from the back room and put it into a washstand drawer in the front room, but that her husband did not know that. Neither of these witnesses knew anything except what the accused told them.

Eva Lewis testified that she lived near the house where deceased was killed, and that just before the shooting occurred she saw deceased dressed only in his underclothing standing in the back door, and that a few moments later she saw defendant pass by with an oil can and some packages in her hand; that she went into the house and soon thereafter heard deceased cursing and say to defendant, "You don't look like you want to get out. I mean for you to leave on this afternoon's train"; that she heard defendant say, "Don't kick me. You hurt me. I haven't did anything to you"; that she then heard a little rumbling, after which deceased cursed defendant and said, "No, I am going to kill you, I have got it in for you anyhow."

Witness said that she then went into her house, got a broom and began to clean up the back yard when she heard two shots and the accused say, "I told you to stop," and then heard three other shots.

The defendant testified that when she got back from the store her husband was lying down in the back bedroom; that she began to prepare a lunch for him to carry in his basket (he worked at night as a fireman at a sawmill), and that he came to the kitchen where she was and said, "I told you, by God, I mean for you to get away from here," and kicked her while she was stooping over; that he then looked for a stick with which to...