State v. Donelon
| Decision Date | 01 May 1893 |
| Docket Number | 11,178 |
| Citation | 45 La.Ann. 744,12 So. 922 |
| Court | Louisiana Supreme Court |
| Parties | THE STATE OF LOUISIANA v. JOHN DONELON ET ALS |
Rehearing refused.
APPEAL from the Criminal District Court for the Parish of Orleans. Ferguson, J.
M. J Cunningham, Attorney General, and Lionel Adams, Assistant District Attorney, for the State, Appellee.
A. D Henriques, for Defendants and Appellants.
Louis A. Paquet on same side.
The accused, John Donelon, was jointly indicted and tried with several others on a charge of murder, and the result of the trial was that he and two others were convicted and found guilty without capital punishment, the prosecution as to the other three defendants having been abandoned after the case had been closed and submitted to the jury.
This appeal is prosecuted from the judgment and sentence of the court by John Donelon alone, assigning as the principal ground on which he is entitled to relief various errors committed by the trial judge in admitting illegal evidence over his objections and exceptions, and excluding legal and competent testimony that he was entitled to have introduced and considered by the jury of trial, though other grounds are assigned and discussed in attorneys' printed briefs.
Preliminarily, the defendants collectively moved the court to quash the indictment on the ground that the grand jury required and compelled them to appear and be examined as witnesses touching the charge preferred in the indictment that was afterward preferred against them, they being at the time incarcerated in jail under an accusation pending against them for the same offence in one of the recorder's courts, without benefit of bail. On the trial of this motion to quash testimony was adduced, the motion overruled and the defendants reserved a bill of exceptions.
An examination of the testimony shows that the defendants were produced before the grand jury as witnesses in the matter of the investigation of the homicide of Thomas Fitzgerald, for the commission of which they were at the time held as prisoners in the parish jail; but it further shows that at the time each of said parties was brought before that body as a witness, he was informed that the grand jury were engaged in the investigation of the aforesaid homicide, and, consequently, had the right to decline to make answers as witnesses to any question that might tend to criminate himself -- that is to say, to render them liable to prosecution for said homicide; but they were each further advised that if he or they undertook to make a statement as to any part of the transaction, he or they must tell all that occurred during the progress of said transaction that came within his or their personal knowledge. It further shows that, subsequent to such notification, certain of said parties did testify as witnesses before the grand jury; but that upon being again interrogated, on a subsequent date, they declined to make answers, and since that time have not appeared as witnesses in the case.
But it also appears that in the meanwhile one of the defendants, upon appearing as a witness before the grand jury, and being interrogated, denied possessing any knowledge of the persons by whom the killing was done, and also denied any criminality in connection with the homicide, stating that at the time of the shooting he was a square away, in company of some ladies; that upon being interrogated as to whom those ladies were, he declined to give their names, and upon being interrogated by the court as to his reasons for refusing to give their names, made answer that he was so advised by his counsel, and that if he had given their names they would have been intimidated by the police, and thereupon said party was brought before the bar of the court and committed for contempt of court.
There is no well-grounded objection to the ruling of the trial judge in declining to quash the indictment on the ground stated.
Had the proof disclosed that the party accused who urges complaint of the judge's ruling had been required by the grand jury, or the trial judge, to testify before that body against his protest and in opposition to his expressed desire to avail himself of his lawful and constitutional privilege, a clear case would have been made, and an indictment predicated upon such evidence would have been undoubtedly vicious. Const., Art. 6; Act 29 of 1886.
But it clearly appears that the complaining defendant was advised of his prerogative to decline altogether to make answers in reference to the homicide on the ground that he might incriminate himself by testifying, but that after being so advised he voluntarily chose to disavow all knowledge of the homicide, and to give in his evidence, generally, on the whole case. And being subsequently pressed to state the names of his female companions, and refusing to give them, he was properly dealt with and treated in contempt of court for declining to give proper answers to the questions propounded. Roscoe's Crim. Ev., pp. 339, 231, 232, 234, 244.
There is nothing in the record to indicate any impropriety or irregularity of the proceedings touching the interrogation of the defendants before the grand jury, notwithstanding the fact that they were subsequently indicted.
Objection is urged to the competency of a juror on the ground that, upon being interrogated as to whether he could give the accused a fair trial on hearing the evidence he answered that he did not believe he could. But the judge, on pursuing the interrogation of the juror, found and decided that he was a perfectly competent juror; and subsequently to this ruling having been made, counsel for the accused proposed to reopen the investigation and prosecute the inquiry further, and thereupon demanded the right to have the testimony reduced to writing, and appended to the record in case of an appeal, and said demand was by the trial judge refused. In thus refusing the request to reopen the investigation the judge acted on the line of official duty and discretion. No sufficient reason is assigned for the reopening of the investigation, and it is impossible to discover what good would have been accomplished by it. The defendant had had his day in court. There had been abundant opportunity afforded him of ascertaining the juror's qualifications, and upon hearing and considering the testimony taken, the judge held that he was competent. That was the end of the matter in so far as that court was concerned. Such is the view entertained by this court in State vs. Mangham, 35 An. 619.
Having examined and approved the proceedings of the judge below, in this regard, dispenses us, of necessity, from deciding in reference to his refusal to permit the testimony counsel proposed to offer, to be reduced to writing. The judge had no occasion to rule on the question at all, as he declined to reopen the case.
In the course of the trial the prosecuting officer proposed to introduce in evidence the alleged confessions of one of the accused, and to the introduction of which various objections were urged, and same having been overruled, defendant's counsel reserved a bill of exceptions.
As counsel lay great stress upon this bill of exceptions and have devoted the greater part of their brief to its discussion -- as well as the greater part of their oral argument -- we have thought proper to reproduce the alleged confession, objections and ruling of the court, for greater accuracy of statement and decision, and which are as follows, to-wit:
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