State v. Dorsey

• Decision Date: 01 October 1888
• Docket Number: 237
• Citation: 5 So. 26,40 La.Ann. 739
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. GILBERT DORSEY

5 So. 26

40 La.Ann. 739

THE STATE OF LOUISIANA v. GILBERT DORSEY

No. 237

Supreme Court of Louisiana

October 1, 1888

APPEAL from the Sixth District Court, Parish of Morehouse. Vaughan, J.

J. P Madison, District Attorney, and J. Henry Shepherd, for the State, Appellee.

Todd &amp Todd and Robert Whetstone, for Defendant and Appellant.

OPINION

WATKINS J.

This appeal is prosecuted from a verdict convicting the accused of murder, and a sentence to life imprisonment. His counsel urge various complaints against the rulings of the trial judge, and charge that same were prejudicial to him, and that he has not had a fair trial. We shall deal with them in the order of their occurrence.

I.

During the process of empaneling the jury the regular venire was exhausted before same was completed, and the court ordered the sheriff to summon six tales jurors to complete the panel.

The sheriff, having summoned said talesmen, returned into court a list of their names, and from which list the call was proceeded with in regular order, commencing with the first. Objection was urged to this procedure by the defendant's counsel on the ground that the names of the tales jurors should have been deposited in the venire box and drawn therefrom. Appended to the bill of exceptions is a statement of the trial judge to the effect that the list of jurors summoned was exhausted before the panel was completed. We have decided that in such event the accused suffers no injury, and that such an objection is not good. 35 Ann. 315, State vs. Farrar.

II.

One of the jurors having been sworn on his voir dire stated that he had formed and expressed an opinion relative to the guilt or innocence of the accused, that same was a fixed opinion, but that he would be governed by the evidence. Thereupon defendant's counsel tendered a challenge for cause, and it was disallowed by the court. The judge assigns that the juror stated that he would disregard his opinion and be governed by the evidence;

If the opinion which the juror entertained was of such a character that it would yield to the evidence adduced on the trial, it cannot avail as an objection to his competency. For it has been decided by this Court that "the expression of an opinion which disqualifies a juror is a fixed, deliberate and determined one, which cannot be changed." 35 Ann. 317, State vs. Farrar.

The opinion of the juror in question may be said to have been a fixed or decided opinion, but not an unyielding and determined one. It is not pretended -- judging by the recitals of the defendant's bill of exception -- that the opinion of the juror was formed from hearing the witnesses' testimony, or statements, and it must, therefore, have been founded upon rumor, and could not have been a determined opinion, such as would be disqualifying.

Furthermore, it does not appear that the particular juror in question sat upon the jury of trial, or that the defendant's peremptory challenges had been already exhausted when the objection was urged. 35 Ann. 315, State vs. Farrar.

III.

On the conclusion of the trial the defendant's counsel requested the court to charge the jury that, where one witness swears positively to a fact, and other witnesses, who were present and had equal facilities of seeing the transaction, swear that if the same had occurred they would have seen it, the testimony of the latter is entitled to equal weight as that of the former, and should have as much force. This charge was declined by the judge.

The counsel admit the force of the rule that, when one witness swears positively to a certain fact and other witnesses swear that they did not see the occurrence, the testimony of the former will be considered as outweighing that of the latter. The reason for the rule undoubtedly is that the one is positive and the other negative testimony. But they insist that we have recently announced a doctrine that is compatible with their theory, and not at all inconsistent with the rule just stated, and they cite our opinion in State vs. Chevalier, 36 Ann. 84.

In that case we employed this language, viz: "The rule is that where one witness swears positively that he saw and heard a fact, and another, who was present, merely swears that he did not see it, and the witnesses were equally faith-worthy, the general principles would, in ordinary cases, create a preponderance in favor of the affirmative, when the positive can be reconciled with the negative without violence or constraint.

"Evidence of a negative character may, under particular circumstances, not only be equal but superior to positive evidence. This must always depend upon the question: Whether the negative testimony can be attributed to inattention, error or defect of memory, and whether the witnesses had equal means and opportunities for ascertaining the facts to which they testify, and exercised the same?" (The italics are those of the writer.)

Conceding the force of the rule and the foregoing qualification, taken together, and the requested charge was not a permissible one because it was not formulated within its compass and pursuant to its provisions. Defendant's counsel simply requested the court to charge that, if one witness swears positively to the occurrence of a certain fact, and other witnesses, who had equal facilities of witnessing it, state that if same had occurred they would have seen it. This was not sufficient. They should also have stated further that such witnesses exercised such facilities, and testified that no such occurrence took place. For it does not suffice that they had the opportunity to see, but did not; that they were present, but did not have their attention attracted to it. These are merely negative averments,...