State v. Cato

• Decision Date: 26 February 1906
• Docket Number: 15,966
• Citation: State v. Cato, 116 La. 195, 40 So. 633 (La. 1906)
• Court: Louisiana Supreme Court
• Parties: STATE v. CATO

40 So. 633

116 La. 195

STATE v. CATO

No. 15,966

Supreme Court of Louisiana

February 26, 1906

Appeal from Sixteenth Judicial District Court, Parish of St. Landry Edward Taylor Lewis, Judge.

Ralph Cato was convicted of murder, and appeals. Affirmed.

Edward Philip Veazie, for appellant.

Walter Guion, Atty. Gen., and R. Lee Garland, Dist. Atty. (Lewis Guion, Gilbert Louis Dupre, and Leon Haas, of counsel), for the State.

OPINION

BREAUX C.J.

The defendant was indicted for murder, tried by a jury, and found guilty as charged without capital punishment and sentenced to imprisonment for life in the penitentiary.

The grounds for his defense are set forth on appeal in several bills of exceptions, and in an assignment of errors substantially on the same grounds as those stated in the bills of exceptions.

Taking up the points of the case in the order in which they were presented in the district court, we have before us the proposition whether the defendant can claim the right to support the testimony of a witness for the state by examining another witness to prove that the witness for the state had testified correctly about a dirk said to have been found where the deceased was lying on the floor. The inquiry was not allowed by the judge of the district court. The witness had been examined in chief by the state, and the fact that a dirk was found near the body of the deceased was elicited on cross-examination.

There had been no attempt made by the state to impeach the witness. The question which the defendant said was an attempt to impeach the witness consisted of an inquiry of the witness if he had not testified to the same fact in chief.

The purpose was, as stated, to refresh his memory and nothing else, in order that he might correct his mistake if he had made a mistake.

In the court's narrative, incorporated in the bill of exceptions, it is stated, quoting: "Had the witness denied ever having found a knife near the dead body, it would have been for the defense to have shown that he had so stated to the witness Murphy." But he did not, as we infer, deny having found the knife as stated. No attempt had been made by the state to discredit the witness. The question of the district attorney was not propounded on the part of defendant with the view of impeaching him. There was therefore no occasion to support his testimony. Corroboration on the part of defendant of testimony of the witness for the state would have been useless consumption of time. Such corroboration by defendant of an unimpeached witness for the state is not sanctioned by the well-settled rules of evidence. Wigmore, verbo "Testimonial Impeachment."

The next ground of objection urged by defendant sets forth substantially that the prosecution was conducted by unsworn, private counsel, in the absence of the prosecuting officer.

The record informs us that after the impanelment of the jury and the examination of one of the witnesses for the state, the district attorney asked permission of the court to leave for a day or two for cause deemed satisfactory by the court. He said to the court, in the presence of defendant and his counsel, that the prosecution would be conducted by attorneys employed who were then assisting him in the prosecution. They were attorneys of record. The defendant and his counsel did not object. On the contrary, the counsel consented, as we are informed by the following stated by the trial judge, which statement forms part of the bill of exceptions. The district attorney said, in...