State v. O'Day

• Decision Date: 21 June 1937
• Docket Number: 34342
• Citation: 188 La. 169,175 So. 838
• Parties: STATE v. O'DAY
• Court: Louisiana Supreme Court

175 So. 838

188 La. 169

STATE v. O'DAY

No. 34342

Supreme Court of Louisiana

June 21, 1937

Rehearing Denied July 8, 1937

Appeal from Criminal District Court, Parish of Orleans; William J O'Hara, Judge.

Jack O'Day was convicted of manslaughter, and he appeals.

Affirmed.

J Bernard Cocke, of New Orleans, and John J. Brown, for appellant.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty. Gen., and Charles A. Byrne, Dist. Atty., Conrad Meyer, Jr., and Herbert W. Christenberry, Asst. Dist. Attys., all of New Orleans, for the State.

PONDER Justice. ODOM, J., and FOURNET, J., dissent.

OPINION

PONDER, Justice.

The defendant, Jack O'Day, was convicted of manslaughter and sentenced to the penitentiary for a term of 6 years and 6 months to 20 years. The defendant appeals from the conviction and sentence.

During the trial, nine bills of exception were taken to the court's ruling by the defendant's counsel.

Bill of exception No. 1 was taken to the court's ruling permitting the taking of testimony at the scene of the crime.

The defendant contends that the court was without right to permit the taking of testimony of witnesses, to permit the jury to perform an experiment, and to permit the introduction of physical objects in evidence at the scene.

The per curiam of the trial judge to this bill reads as follows:

"This Bill was taken to the ruling of the Court, which permitted certain witnesses to testify at the scene of the crime. The bill recites that the Court was in session at the scene of the crime; that all the officers of the Court, as well as the Jury, the defendant and his counsel, and the prosecuting attorneys were present. The Bill does not object to the visit to the scene, but objects to the taking of testimony at the scene. The scene was visited and testimony taken on motion of the State. All of the witnesses who testified at the scene of the crime with one lesser exception had already testified in full as State witnesses in the court room.

"The Court concurred with the State in the belief that it was necessary for a proper understanding of the evidence, and that the Jury may have a fair and better opportunity to pass upon the credibility of certain material witnesses, that the Jury be permitted to visit the locus of the crime, to-wit: the immediate rear of the L. & A. R. R. passenger depot, New Orleans.

"At the scene, the State recalled the witnesses in question, to-wit: one Leonard Cline, one Henry Hoffstadt, one Henry Viot, one Paul Salvaggio, and one Simon Palanque, and had them pointout at the scene of the crime certain objects and places, the position of the automobile of appellant in which the deceased was shot; the place where her body was found, some forty feet from the car; the projecting water pipe anchored appellant's car to the spot and made it impossible for him to drive it from the scene, after the homicide; a view from the position of the water pipe, through the passenger station proper, revealing the uptown portion of the witness Salvaggio's business place on the opposite side of S. Rampart Street, facing the station, and as stated, visible from the spot where the water pipe showed through the station, immediately before the fatal shot was fired.

"Appellant drove his car into the station premises from Saratoga Street. There is no vehicular passage way on the Railroad property, except two railroad train tracks. Pillars support a small shed extending the length of the rear portion of the station.

"A proper understanding of many vital and necessary facts, made a visit to the scene by the Court and jury a necessity, and only sworn and competent witnesses pointed out objects and positions and elucidated their testimony to the Jury at the scene. One witness testified at the scene, who had not previously testified in the Court room, to-wit: one Simon Palanque, an attache of the District Attorney's office, who was sworn and called upon to step off the distance between the water pipe and Saratoga Street, that the record might show what the Jury could see.

"This Bill also objects to the taking of testimony (in the presence of the Jury, the appellant and his attorneys, the prosecuting attorneys, the Court and all the attaches of the Court) in the basement of the Criminal Court building, where the Ford V-8 coupe of appellant which had been taken from its anchorage to the water pipe in the L. & A. Station by the police, was wrapped and sealed, and preserved and stored, to be used as evidence in the case.

"The deceased Ethel Hughes was shot once, the bullet entering the skull on the left side behind the left ear, travelled through the brain and made its exit on the right upper and forward temporal region of the head. This fact, plus the existence of some strands of hair, some bits of bone and some fragments of brain tissue, which the bullet forced against the right hand front tip corner of appellant's coupe and which were not removed by the authorities from the automobile, showed conclusively that the deceased was shot after she had half risen from the seat of the automobile, half turned from the driver of the automobile, and was in the act of stepping out of the automobile, and making her exit from the coupe, just as the witnesses saw her attempting to do on South Rampart Street prior thereto. Because there were no witnesses to the shooting itself which occurred at 1:05 A. M. in this dark, lonely and deserted place, the defense properly took the advantage and gave the Jury to understand that it was encumbent upon the State to prove beyond a reasonable doubt that O'Day did not act in self-defense. The physical facts above stated showed conclusively that the woman was not shot by a person in self-defense.

"The exact spot of the interior of the car to which the hair, bone and tissue adhered, as well as the existence of the hair, bone and brain tissue at that place, was evidence delicate to handle, and a fact indispensibly necessary to the State's case. The best evidence, and as far as the Jury was concerned, the most satisfactory proof of this indispensible fact, and other equally necessary facts was the ocular demonstration of the car to the Jury. This portion of the appellant's coupe was not detachable and could not be brought into the court room. The court building construction made it impossible to bring the vehicle to any other place in the court building except the basement where it was. These considerations are emphasized because this Court believes that this bill of exception eloquently demonstrates how fatal to the cause of justice would be such a principle as appellant contends for.

"This Court respectfully believes that it was a matter of necessity as well as intelligent procedure that witnesses point out to the Jury the particular part of the automobile to which the evidence adhered; to have the Jury see for themselves how well the body of the car had been sealed to preserve the evidence in its interior, and consequently how genuine was this evidence, to have witnesses show where, in the interior of the car, the fatal bullet was recovered and other material features of the case so necessary for the Jury to have accurate knowledge of. * * *"

The defendant admits that it was in the discretion of the court to permit the jury to view the scene but objected to any evidence being taken at the scene.

There is no form of legislation in Louisiana that provides that the jury may be taken to the scene or to take testimony at that place. While on the other hand there is no form of legislation that prohibits it. The purpose of a trial is to ascertain the truth. It is impossible to bring the locus into the court and introduce it in evidence. It is now well recognized, and there is no dispute herein raised to the contrary, that courts may take the jury to view the scene. Upon examination of the authorities of the different States, we find two theories as to whether or not a view of the scene constitutes the taking of evidence. One theory holds that a view of the scene does not constitute taking of evidence. The other theory, in our opinion conforming more to reason, is that a view of the scene does constitute the taking of evidence. We are of the opinion that the most reasonable rule is laid down in Wigmore on Evidence, vol. 3, p. 2329, § 1803:

"A view is allowable in criminal as well as in civil cases (Ante, § 1163). But is it necessary, under the hearsay rule and the constitutional provision sanctioning it for criminal cases (Ante, § 1397), that the accused be present at the view? This question has been answered by some courts in the affirmative, chiefly on the theory that otherwise the accused is deprived of the right to be confronted by the witnesses against him."

This in effect holds that the viewing of the scene is taking evidence because it requires the presence of the accused. It is only reasonable that, viewing the scene, the physical facts and the circumstances surrounding the scene is as much the taking of evidence as taking the testimony of witnesses. A view of the scene without explanation might confuse the jury. Such confusion in many instances might operate against the defendant and do him great harm. Such confusion may defeat justice. The explanation of the locus would enable the jury to determine the real truth. Neither the State or the defendant have any right to complain at injury caused by the truth. Witnesses are permitted to draw diagrams of the locus, while testifying in court, and to testify and explain the locus from the diagram and to point out the different objects on the diagram to the jury. It does not conform to reason to say that you can draw a diagram of the locus and explain it with testimony but cannot point out the objects at...