State v. Deschamps

• Decision Date: 01 May 1890
• Docket Number: 10,629
• Citation: 42 La.Ann. 567,7 So. 703
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. ETIENNE DESCHAMPS

7 So. 703

42 La.Ann. 567

THE STATE OF LOUISIANA v. ETIENNE DESCHAMPS

No. 10,629

Supreme Court of Louisiana

May 1, 1890

APPEAL from the Criminal District Court for the Parish of Orleans. Marr, J.

Walter H. Rogers, Attorney General, and Lionel Adams, for the State Appellee.

Alfred Roman, for Defendant and Appellant.

OPINION

WATKINS, J.

This is the defendant's second appeal from a verdict and judgment sentencing him to the extreme penalty of the law for the commission of the crime of murder. 41 An. .

The grounds on which the reversal of the judgment is demanded are: first, that certain testimony was improperly admitted second, that the court below improperly declined to give certain requested special charges to the jury; and third, that his application for a new trial was illegally refused.

I.

The first bill of exceptions to which our attention is attracted is that in reference to the testimony of the coroner who was called and interrogated as a witness on the part of the State.

The objections to the coroner's statement as a witness are: first, that it is irrelevant to the issue; second, "that its tendency was to prejudice the accused before the jury;" and third, that it tended to establish the perpetration of another and different crime than the one charged against the accused, and which was not necessarily included therein.

To these objections the trial judge replied that "in all cases of homicide, even when it is not absolutely necessary to prove the condition of the body of the deceased in order to ascertain and determine the cause of the death, and the instrumentality, means and agencies by which death was accomplished, such testimony is admissible to show whether or not the killing was by the use of means and agencies prepared in advance, and dangerous to human life. Such testimony is also admissible to show motive, and whether the killing, intentional or unintentional, was done while the accused was engaged in doing some other unlawful or felonious act." He therefore considered the testimony competent, and admitted it over defendant's objection and exception.

In thus ruling, we think the judge's decision was undoubtedly correct. The simple proof of a homicide is insufficient to establish the crime of murder. Some proof must be first affirmatively made, on the part of the State, of the existence of malice in the heart of the perpetrator of the act, in order to put the accused upon his defence.

Ordinarily, when the act is committed deliberately, with a deadly weapon, and is likely to be attended with dangerous consequences, the malice requisite to murder will be presumed. But, as a general rule, it has been held in different States, that the presumption which arises from a killing, unattended with such circumstances of violence, is that of murder in the second degree. And as under our law there are no grades or degrees in the crime of murder, the simple proof of a killing by the accused, unattended by any circumstances of malice, could raise no stronger presumption against him than that of manslaughter. 2 Whar. Crim. Law, Sec. 952.

But there are many circumstances from which malice may be inferred other than the use of a deadly weapon; and Mr. Wharton instances "prior attempts to injure, though in other ways." 2 Whar. Crim. Law, Sec. 954.

The same author says:

"Since malice can not usually be directly proved, and the evidence of it, therefore, being circumstantial, any facts which go to afford an inference of its existence, are admissible." 2 Whar. Crim. Law, Sec. 956.

The same author announces the rule to be that:

"Where the scienter or quo animo forms an essential or indispensable part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent * * Notwithstanding they may in law constitute a distinct crime." Whar. Homicide, Secs. 701, 702.

Bishop puts the principle thus tersely:

"The proof of criminal intent and of guilty knowledge, not generally admitting of other than circumstantial evidence, may often be aided by showing another crime, attempted or perpetrated; and, when it can be, it is permissible." 1 Bishop's Crim. Proc. Sec. 1126.

In treating of what is admissible in proof of res gestae the same author says:

"Therefore, if two or more offences are committed in one transaction, all the transaction -- that is, all the offences -- may be given in evidence on the trial for one. And all the res gestae may be shown, though the transaction is a continuing one, or done in parts on different days." Bishop's Crim. Proc., Sec. 1125.

Our predecessors recognized and enforced this precept of criminal law in State vs. Patza, 3 An. 572, the rule being stated thus:

"The general rule is, as stated by counsel for the accused, that no evidence can be given of other felonies committed by the prisoner than that charged in the indictment. To this rule, however, there are exceptions, one of which is where it becomes material to show the intent with which the act charged was done. Evidence may be given of a distinct offence not laid in the indictment." See also State vs. Thomas, 30 An. 600.

We have maintained the right of the State to offer such evidence as is here objected to in a recent and conspicuous case, State vs. Vines, 34 An. 1081, in which we said:

"Proof of a different crime from the one charged, though generally objectionable, is admissible when both offences are closely linked or connected, especially in the res gestae, and also when such proof is pertinent and necessary to show intent." State vs. Mulholland, 16 An. 377; State vs. Rohfrischt, 12 An. 382.

On this summary of authority we can safely rest our conclusion as to the correctness of the ruling complained of by the accused.

II.

The defendant's counsel requested several special charges which were refused by the trial judge, which we will consider separately.

(a) That no evidence tending to establish the commission of other offences not connected with the charge of murder, and not growing out of such charge, should be considered by the jury in forming their verdict in this case.

To this request the judge responds that it proceeds upon the hypothesis that there was evidence before the jury tending to establish the commission of other offences not connected with the charge of murder; but he says "there was no evidence before the jury respecting the commission of any offence by the accused, which was not connected with the charge of murder, and which did not tend to show that the killing was done while the accused was engaged in the commission of an offence which was a felony."

On this statement of fact, the requested charge would have been misleading and superfluous if made, and the judge properly refused to give it to the jury.

(b) That should the jury believe from the law and the evidence, that the accused, being of sound mind, caused the death of the deceased in an unlawful manner, though not against the will of the latter; and should the jury also believe that the result of the defendant's act showed negligence or gross imprudence, but no premeditation, no preconceived design to kill, and therefore no malice on his part, it would be the duty of the jury to find for manslaughter but not for murder.

The judge declined to give this special charge, on the ground that it was not a correct exposition of the law; insisting, on the contrary, that if the killing was shown to have been done while the accused was

engaged in doing an act, which was itself a felony, the absence of proof of premeditation or preconceived design to kill the deceased is insufficient to reduce the crime to manslaughter. He supports that view by reference to his written charge, in which similar ground is taken, viz:

"If the jury believe from...