State v. Bush

• Citation: 41 So. 793,117 La. 463
• Decision Date: 04 June 1906
• Docket Number: 16,058
• Court: Supreme Court of Louisiana
• Parties: STATE v. BUSH et al

41 So. 793

117 La. 463

STATE v. BUSH et al

No. 16,058

Supreme Court of Louisiana

June 4, 1906

Rehearing Denied June 27, 1906.

Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.

A. P and Madden Bush were indicted for murder. A. P. Bush was found guilty, and appeals. Affirmed.

Elstner & Land, Lewell Colbert Butler, and Andrew Jackson Murff, for appellant.

Walter Guion, Atty. Gen., and James Martin Foster, Dist. Atty (Lewis Guion and Wise, Randolph & Randall, of counsel), for the State.

PROVOSTY J. BREAUX, C.J., and NICHOLLS, J., concur in the decree. LAND, J., takes no part, not having heard the argument.

OPINION

PROVOSTY, J.

The defendant A. P. Bush was found guilty of murder without capital punishment.

He applied for a new trial, on the ground of error in the charge of the judge. In overruling the motion the judge said:

"The testimony in this was closed about 8 o'clock p.m., Tuesday, March 6th, and just before the court was adjourned at 10 o'clock a.m., Wednesday, counsel for the defendant requested that the court reduce its charge to the jury to writing, whereupon the court expressed acquiescence to said request and then and there requested said counsel to hand in any special instruction he desired to have incorporated in the charge of the court to the jury. Whereupon said counsel answered he had none to offer, but preferred to wait until he heard the charge of the court. Further, when, on the afternoon of Wednesday, March 7th, the court had given the jury the written charge as found in the record in this case, the court addressed the attorney in this case for the state, as well of those of the defendant, if they had any special instruction which they desired to be given, and after time to confer the attorneys on both sides answered in the negative, and no objection to the charge as given by the court was made known, and no exception taken, whereupon the jury retired to consider its verdict, and after due consideration returned a verdict, before ajournment on the afternoon of Wednesday, March 7th, whereupon, after having the jury polled and its unanimity ascertained, the jury was discharged, and the court adjourned. And no objection to the charge of the jury being made known to the court until counsel for defendant presented a motion for new trial at motion hour on the morning of March 10th, the court overruled said motion as coming too late, and for the further reason that no injury to the accused was done, and, further, that the legal doctrine set forth in the charge objected to in the motion for new trial, though urged by the attorneys for the state in their argument before the jury, was not replied to or dissented from by counsel for defendant in argument."

Under the above circumstances, the question now presented is whether, not having made any objection to the charge of the judge when thus required to make known any he might have, the defendant was still in time to urge the objections on new trial, or can be permitted to urge them in this court. We think not.

The well-nigh universally accepted rule, both in civil and criminal cases, is that objections to the charge of the court will not be considered on appeal unless made before verdict. 2 Cyc. 700, 1046; Ency. P. & P. Vol. 8, p. 253; 12 Cyc. 666, 667; State v. McClanahan, 9 La.Ann. 210; State v. Chopin 10 La.Ann. 458.

In the case of State v. Ricks, 32 La.Ann. 1098, this court made a departure from that rule, and held that, where the charge had been written and was in the record, any errors therein would be reviewed. Shortly afterwards, however, when the case was invoked as authority, in State v. Beaird, 34 La.Ann. 104, before the same judges, the court referred to it in the following terms:

Although in writing, the judge's charge was not excepted to. We held in State v. Ricks, 32 La.Ann. 1098, that, where the charge was in writing and embodied in the record, we would notice errors, under proper assignment thereof, although not presented by bill of exceptions. While not now overruling this opinion, which, however, is contrary to prior authority (State v. Chopin, 10 La.Ann. 458), and therefore to be strictly construed, we deem it proper to say that it is in every way preferable that charges should be excepted to when given, in order that the judge may have an opportunity of explaining or correcting his charge at the time; otherwise, the defendant would be at liberty to take his chances of acquittal on the charge as delivered, and, if convicted, to urge his objection in subsequent proceedings.

"Only in case of gross and unambiguous error will we sustain objections to the charge not made and presented by bill of exceptions at time of delivery."

And about the same time in another case (State v. Curtis, 34 La.Ann. 1214) the same judges said:

"In a case of Ricks, 32 La.Ann. 1098, which he quotes, it appeared that the obnoxious charge had been given to the jury 'in writing and was embodied in the record,' which is not the case here. That decision had been subsequently reviewed by us, and has been considerably modified in the Case of Beaird et al., 34 La.Ann. 106, where we showed the danger of abuse in allowing the accused to complain on appeal of a charge, even in writing, to which he had not objected or excepted when it was given, by which course he 'would be at liberty to take his chances of acquittal on the charge as delivered, and, if convicted, to urge his objections in subsequent proceedings.' And without absolutely overruling the previous opinion we laid down the following rule: 'Only in cases of gross and unambiguous error will we sustain objections to the charge not made and presented by bill of exceptions at time of delivery.'"

It would seem to be plain that the authors of the Ricks decision refrained from absolutely overruling it simply because the necessity of doing so could be avoided by deciding the case on other grounds and because a court is always reluctant to overrule itself.

One year thereafter, in the case of State v. Sheard & Smith, 35 La.Ann. 543, the same judges said:

"This charge, when given, was not objected to in the court below, no bill of exceptions was taken to it, and from aught that appears in the record there is nothing to show that it was not fully acquiesced in by the accused when delivered, and the first complaint heard of it is in this court, in the counsel's argument."

The court referred to the Ricks Case, and underscored the qualifiers "gross and unambiguous" in the sentence:

"Only in cases of gross and unambiguous error will we sustain objections to the charge not made and presented by bill of exceptions at time of delivery."

Justice Levy, who had been the organ of the court in the Ricks decision, was succeeded on the bench by Justice Manning, a recognized authority in criminal law, and the latter, at the first opportunity, expressed himself, speaking for the court, in the case of State v. Riculfi, 35 La.Ann. 770, as follows:

The errors assigned are alleged misdirections of the court in its charge to the jury, a mode of presenting such matters for review so unusual, and so contrary to established practice, that the prisoners' counsel have found it necessary to offer an explanation to excuse it, in the circumstance that the charge was delivered late at night. They asserted, however, that their right to submit these matters for review under that form 'rests upon repeated adjudications of this court.' Eight cases are cited as sustaining this assertion, one of them being a civil cause, and, of course, wholly out of the domain of the subject, and not one of the others, with a single exception, sustaining or countenancing the practice. That exception in State v. Ricks, 32 La.Ann. 1098, which was qualified on the first opportunity the court had to intimate its correctness (State v. Beaird, 34 La.Ann. 104), and which is, as there admitted, contrary to authority, and again in State v. Curtis (not yet officially published) 41 So. 58, and may now be considered as overruled.

"The reason why this practice is not permitted is obvious. By it the judge had no opportunity to explain his charge -- none to state that, as given, it was pertinent to the facts of the case, and that a fuller charge was not demanded by the circumstances attending the commission of the act for which the defendant is prosecuted. Bills of exceptions should have been taken to those parts of the judge's charge which were deemed to be wrong, which will always bring them up with the judge's reasons, and such facts as are necessary to show how the law was applied. They cannot be examined on an assignment of errors. Even a bill of exception, taken to the charge as a whole, is not allowed. State v. Chopin, 10 La.Ann. 458. An assignment of errors in criminal practice is for another purpose than correction of the charge of the court."

The case was one of murder, in which a verdict without capital punishment had been found, and the judgment was affirmed. The Ricks Case was expressly overruled.

So, likewise, the case of State v. Bird, 38 La.Ann. 497, was a case of murder without capital punishment. In it, after referring to the cases hereinabove mentioned, the court said:

"The correctness of the assumed misdirections of the judge in his charge to the jury cannot be heard and determined by way of motion for new trial."

In State v. Ferguson, 37 La.Ann. 51, a case of conviction for manslaughter on a charge of murder, the court said:

Such a course illustrates, more forcibly than any reasoning which we could adopt, the wisdom of the now settled rule that an assignment of errors is not the legal mode of inviting review by an appellate court of alleged errors in the charge of the trial judge.

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