State v. Cullens

• Decision Date: 17 June 1929
• Docket Number: 29976
• Citation: 168 La. 976,123 So. 645
• Court: Louisiana Supreme Court
• Parties: STATE v. CULLENS

123 So. 645

168 La. 976

STATE v. CULLENS

No. 29976

Supreme Court of Louisiana

June 17, 1929

Rehearing Denied July 8, 1929

Appeal from Third District Court, Parish of Union; S.D. Pearce Judge.

Taylor Cullens was convicted of manslaughter, and he appeals.

Affirmed.

J. W Elder, of Ruston, S. L. Digby, of Farmersville, and Walter L. Brown, of El Dorado, Ark., for appellant.

Percy Saint, Atty. Gen., W. J. Hammon, Dist. Atty., of Jonesboro, E. R. Schowalter, Asst. Atty. Gen., and H. G. Fields, of Farmersville, for the State.

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

OPINION

ROGERS, J.

This is an appeal from a conviction of manslaughter on a charge of murder. The homicide occurred on February 2, 1929, and the prosecution is therefore governed by the provisions of the new Criminal Code. There are ten bills of exception in the record, which are numbered from 1 to 10, inclusive. Bills Nos. 1, 5, and 10 are not argued nor insisted upon by appellant, so that it is not necessary for us to notice them. The remaining bills will be discussed in the order in which they appear in the transcript.

Bill No. 2. At the inception of the trial held on April 15, 1929, defendant filed a motion, setting forth that the trial judge was incompetent to try his case because having reached the age of 75 years on April 12, 1929, he automatically vacated, his judicial office under Const. 1921, art. 7, § 8, and praying that a judge of an adjoining district be named to try the issue raised by the motion. The state objected to defendant's application on numerous grounds. The trial judge sustained the objection and overruled the motion. The bill is from that ruling.

One of the state's objections, which was sustained, was that the title to the office held by the trial judge could not be inquired into collaterally as defendant was attempting to do.

There is no question as to the legality of the title of the trial judge up to the date he reached the age of 75 years. He was at that time a judge both de jure and de facto. If thereafter he ceased to be a judge de jure, which is not conceded, nevertheless he was still a judge de facto, and as such his judicial title was not open to a collateral attack. State v. Smith, 153 La. 577, 96 So. 127, and authorities cited. See also, to the same effect, State v. Phillips, 164 La. 597, 114 So. 171. There is therefore no merit in defendant's complaint.

Bill No. 3. The basis of this bill is the refusal of the trial judge to sustain defendant's motion to quash the indictment on the ground that the grand and petit juries were illegally drawn. Defendant contends that the jury commission which drew these juries became functus officio on August 1, 1928 when the Criminal Code went into effect, and that no jury commission had been selected and appointed as required by article 175 of the Code. He also contends that the list of 300 names from which the venires of the juries were drawn was illegal, because a new venire list containing the requisite number of names was not prepared subsequent to the adoption of the Criminal Code.

The jury commission which drew the venires of the grand and petit juries was appointed in accordance with the terms of Act 135 of 1898, and in preparing the venire lists it followed the provisions of that statute. It was therefore a jury commission de facto, and its acts in preparing the venire lists were valid. State v. Phillips, referred to supra.

Bill No. 4. A state witness having stated that the deceased was marshal of the town of Junction City, where the homicide occurred, defendant objected to the statement on the ground that it was hearsay and not the best evidence and requested that it be stricken out. The trial judge overruled the objection and denied the request. Hence this bill. The trial judge assigns as the cause for his ruling that the witness knew that the deceased was the marshal of the town, and that there was no reason why he should not so testify; thatthe mayor of the town also testified to the official capacity of the deceased, and that he was not a commissioned officer, but simply elected by the town council; that the indictment does not charge that the deceased was an officer of the law, and his official capacity did not enter into the prosecution. We do not find any error in the ruling. It is plain, from the statement of the trial judge, that the fact that the deceased was marshal of the town in which he was killed was merely an incidental circumstance and not a controlling factor in the case.

Bill No. 6. A witness for the state was asked by the prosecuting attorney if, on examination of the body of the deceased, he saw any wounds. The witness was a deputy sheriff, and defendant objected to his testimony on the ground that he was not a medical expert. The objection was overruled, and a bill was reserved. We think the testimony was properly admitted. No expert knowledge or experience whatever was involved in the testimony of the witness. He was merely asked to testify to a physical fact as he saw it. "A non-expert witness may testify that the deceased was conscious at a certain time, and may describe the wounds he saw on the body." Underhill, Crim. Ev. § 491, p. 695.

Bill No. 7. A witness for the state was asked, on cross-examination, if it was not a fact that about two weeks prior to the homicide the defendant's father had the witness' father arrested on a charge of highway robbery. The question was propounded for the alleged purpose of showing bias or prejudice on the part of the witness against the defendant. The state objected and the objection was sustained, the court ruling that the subject-matter of the inquiry was too remote to have any effect on the feelings of the witness towards the defendant. Our opinion is that the testimony was properly excluded.

It is always competent in a criminal case to show the feeling entertained by a witness towards the person against whom he is called upon to testify. In his comments upon the rule, Mr. Wigmore, says: "The range of external circumstances from which probable bias may be inferred is infinite. Too much refinement in analyzing their probable effect is out of place. Accurate concrete rules are almost impossible to formulate, and where possible are usually undesirable. In general, these circumstances should have some clearly apparent force, as tested by experience of human nature, or, as it is usually put, they should not be too remote." Wigmore, Ev., vol. 2. p. 1084, § 949.

If defendant's...