State v. Cutrera

• Decision Date: 29 June 1918
• Docket Number: 23118
• Citation: 143 La. 738,79 So. 322
• Court: Louisiana Supreme Court
• Parties: STATE v. CUTRERA et al

79 So. 322

143 La. 738

STATE v. CUTRERA et al

No. 23118

Supreme Court of Louisiana

June 29, 1918

Oliver S. Livaudais and Fernando Estopinal, both of New Orleans, and Fred A. Ahrens, for appellants.

A. V Coco, Atty. Gen., N. H. Nunez, Dist. Atty., of St. Bernard (Vernon A. Coco, of New Orleans, of counsel), for the State.

OPINION

O'NIELL, J.

The defendants, appellants, were convicted of murder, without capital punishment, and sentenced to life imprisonment.

They complain of a ruling of the district judge, admitting in evidence against them, as a dying declaration, a statement made by the victim of the homicide, accusing them of the crime.

The objection to the evidence was and is that there was not sufficient proof to satisfy the legal mind that the deceased believed he was about to die, when he made the accusing declaration. That objection may be divided into two; the first being that there was not sufficient proof that the deceased made the statements which the court considered an abandonment of all hope of recovery, and the second being that the statements attributed to the deceased did not, with all the surrounding circumstances, make proof that the man had abandoned all hope of recovery, when he made the accusing declaration.

This court, in State v. Gianfala, 113 La. 463, 37 So. 30 (on rehearing), adopted the opinion, borne out by a preponderance of legal authority, that an accusing declaration made by a person not under oath nor subject to cross-examination is not admissible in evidence against the accused person, in a criminal prosecution, as a dying declaration, unless there is evidence showing to the satisfaction of the legal mind that the person making the accusation had, at the time, no hope of recovery.

The only evidence offered in this case to show that the deceased had no hope of recovery when he made the accusing declaration is the testimony of a deputy sheriff to whom the declaration was made. The officer arrived at the scene of the crime 1 1/2 or 2 hours after the man had been shot and stabbed. The wounded man was yet lying where he had fallen on the ground. He was an Italian, but spoke both English and his native language. The officer, however, brought an Italian interpreter, who was present, listening to all that was said and translating into English what was said in Italian, during all of the time the wounded man was talking to the officer. There were also a number of soldiers and at least four other bystanders present during the conversation between the deputy sheriff and the wounded man.

The only witnesses who were called to prove that the statement was a dying declaration were the deputy sheriff and the Italian interpreter. Although the deputy sheriff testified that the interpreter 'was right there' listening to the conversation and translating what was said in Italian by the wounded man, and although the interpreter himself testified that he came to the wounded man with the deputy sheriff and left with him, and therefore should have heard all that was said, the interpreter swore that the wounded man did not say anything, except that Seymour Cutrera had shot him and that Louis Cutrera had cut him.

The testimony of the interpreter was excluded by the judge, and the jury was instructed to disregard it, on the objection of the attorneys for the defendants, on the ground that it was not shown to have been a dying declaration, notwithstanding all of the testimony of the deputy sheriff on that subject had been heard and he had been allowed to relate to the jury the accusing declaration made by the wounded man. In fact, no evidence whatever was offered, after the deputy sheriff testified, to prove that the accusing statement made by the wounded man was a dying declaration.

It is argued on behalf of the state that the ruling excluding the testimony of the interpreter, was founded upon the erroneous opinion of the judge that the testimony was inadmissible...