State v. Fernandez

• Decision Date: 03 November 1924
• Docket Number: 26831
• Citation: 157 La. 149,102 So. 186
• Court: Louisiana Supreme Court
• Parties: STATE v. FERNANDEZ et al

102 So. 186

157 La. 149

STATE v. FERNANDEZ et al

No. 26831

Supreme Court of Louisiana

November 3, 1924

Rehearing Denied December 1, 1924

Appeal from Criminal District Court, Parish of Orleans; N. E Humphrey, Judge.

Joseph Fernandez and John McGinnis were convicted of conspiracy to commit robbery, and of robbery, and they appeal.

Affirmed.

Maurice R. Woulfe and Rousseau Voorhies, both of New Orleans, for appellants.

J. Q Flynn, of New Orleans, for appellant John McGinnis.

Percy Saint, Atty. Gen., and Robert H. Marr, Dist. Atty., and T. V. Craven, Asst. Dist. Atty., both of New Orleans (Percy T. Ogden, Asst. Atty. Gen., of counsel), for the State.

OPINION

LAND, J.

The defendants Fernandez and McGinnis are charged in separate counts of the information with conspiracy with John Donovan, Alcee Beucler, and James Bradley, alias Edwards, to commit robbery upon one Al Pilsbury, and with the robbery of Pilsbury of certain valuables and of $ 1,900 in currency.

The codefendants Donovan and Bradley, alias Edwards, have not been tried under said information, as they are at large; their bonds having been forfeited.

The defendant Beucler, tried jointly with the defendants Fernandez and McGinnis, was acquitted, and the latter defendants were found guilty, as charged on both counts in the information.

They have appealed from the conviction and sentence against them, and present to this court for review 14 bills of exception.

Bill of Exception No. 1.

The prosecuting witness Al Pilsbury related to the jury the manner in which he had been robbed, and repeated the statements made by Edwards to Donovan, "Frisk him; see if he has got more money," and "Lets bump this fellow off; he knows us." The witness stated also to the jury that Donovan refused, and said "No."

This testimony was objected to by defendants as hearsay evidence, and as statements made out of their presence, and not connecting them with the conspiracy. The prosecuting witness was describing to the jury the robbery as it had taken place, and detailing the statements made at the time by the actual participants, Donovan and Edwards, who are charged in the information as co-conspirators with defendants Fernandez and McGinnis. This testimony was not hearsay, but clearly formed a part of the res gestae. Moreover, the declarations of one of the participants in a crime, when made during the existence of the conspiracy and in furtherance thereof are admissible against his associates, when once the conspiracy or combination is established. However, where conspiracy is charged, the order of proof is discretionary with the trial judge, especially where establishing the conspiracy is dependent upon a number of facts and circumstances from which the conspiracy is to be inferred; and evidence of acts and declarations may be received at any time during the trial, dependent, finally, for effect as evidence, under the charge of the judge, on the conspiracy being established vel non to the satisfaction of the jury, and the connection therewith of the accused sought to be bound by the acts and declarations of his codefendant. State v. Swindall, 129 La. 760, 56 So. 702; State v. Gebbia, 121 La. 1083, 47 So. 32; State v. Bolden, 109 La. 484, 33 So. 571; State v. Barrett, 117 La. 1086, 42 So. 513.

The trial judge, as shown by the bill of exceptions, overruled the objection of counsel for defendant to this testimony, with the statement to the jury:

"That, in order for that to be binding on the accused, the state must connect these accused with the conspiracy."

The judge's charge is not in the record but, in the absence of a bill of exceptions to such charge, it must be presumed that he did his duty and charged the jury the law as to the consideration by them of the testimony objected to by defendants. The ruling is correct.

Bill of Exception No. 2.

Al Pilsbury, the prosecuting witness, before testifying to a confession made by the codefendant McGinnis, in the presence of Beucler and Donovan and of several detectives, and while being cross-examined by defendants' counsel, in order to ascertain if said confession had been made freely and voluntarily, was interrogated as follows:

"Q. You did quite a lot of arresting in this case yourself with a gun? A. Yes; I arrested one man with my gun, and that was Donovan. Q. And you carried him over to the detective office? A. Yes."

Objection was made by the state, and sustained on the ground that any violence, if offered to Donovan when arrested, was irrelevant as to McGinnis, so far as the freedom of the latter's confession was concerned. Counsel for defendants was told, however, by the district attorney to go ahead and show any acts of violence he could show; the district attorney remarking at the time:

"I would use acts of violence on a burglar myself."

This remark was objected to, and the court immediately instructed the jury that the statement made by the prosecuting officer had no bearing on the case, and that they must pay no attention to any remarks by counsel on either side. As defendants were indicted for robbery, and not for burglary, the remark was irrelevant, and, as the jury was instructed to ignore it, we fail to see in what way the defendants could have been prejudiced.

The complaint in this bill, that counsel for defendants were not allowed by the court to question this witness, in order to ascertain whether the confession of McGinnis was a voluntary one, is without foundation in fact, as the record shows that counsel for the defense were given full opportunity for this purpose. Trans. pp. 46, 50.

Bill of Exception No. 3.

The complaint, that the attorneys for the accused were not permitted, while Al Pilsbury, a state witness, was testifying on redirect examination, to ask witness if he admitted that he was charged with having forged labels in violation of the Internal Revenue Laws, is frivolous. Counsel for defense on cross-examination had asked the witness:

"Are you not charged also with the violation of the Revenue Act, for having forged stamps and labels? A. That is the charge in the liquor deal. Q. That is the charge in the federal court now? A. Yes." Trans. p. 65.

On redirect examination, the state's attorney said to the witness:

"The defense attorneys asked you, were you charged with any liquor violation, and you said yes." Trans. p. 68.

Not only was no new matter brought out on redirect examination by the prosecuting officer, but it was not even disputed that such charge was pending against the state witness in the federal court. There was no necessity for further examination of the witness on the subject by counsel for accused.

Defendants also complain in this bill that the court refused to permit the witness to answer the following question:

"You have admitted under cross-examination that the money, or part of this money, belonged to you?"

It was objected to, and objection sustained as irrelevant. The bill fails to show the relevancy of the testimony. The lower court held that defendants' attorneys had cross-examined this witness, and turned him back to the state for redirect examination, and that, no new matter having been brought out, the objection was sustained. As the question had been answered on cross-examination by counsel for defendants, it was unnecessary to have the answer repeated.

Ordinarily a party must exhaust his cross-examination of a witness when it is entered into, and a recross-examination after the redirect will not be allowed. But this, like other matters as to the examination of witnesses, rests in the discretion of the trial court, which may allow a recross-examination, and the action of the court will not be disturbed, unless an abuse of discretion is shown. 40 Cyc. p. 2530 (5); State v. Haab, 105 La. 230, 29 So. 725.

Bill of Exception No. 4.

Defendant's counsel complain that their objection to the following question, propounded to the witness Martin by counsel for the state as leading, was overruled:

"On the night in question, the night you went with Fernandez down town, where you were toget some whisky, did you have any acids on your person, and did you burn a hole in the rear of your trousers?"

The trial judge in his per curiam to the bill states:

"Counsel for defendants on cross-examination of a previous witness asked the question: 'Didn't Martin on that particular night have a bottle of acid in his pocket for the purpose of testing narcotics, and didn't the bottle break, and the acid burn the seat out of Martin's trousers?'"

"The state put the witness Martin on the stand, in order to rebut the imputation of counsel for defendants, and the question was asked for that purpose, and for no other, and the court admitted it as rebuttal."

"Besides, even granting that the question was leading, to be entitled to relief, defendants must show injury. As a matter of fact, defendants have not even alleged injury, nor was there any shown."

A verdict will not be set aside, because the court has allowed a leading question to be asked, unless the accused has been prejudiced thereby. State v. Coll, 146 La. 597, 83 So. 844.

Bill of Exception No. 5.

The trial judge in his per curiam states that counsel for defendants endeavored to have the witness Tom Wright answer whether Pilsbury, a previous witness, could hear or see Wright at the time he was talking to Thompson in Wright's soft drink stand, after the robbery. Pilsbury at that time was said to have been seated in an automobile outside of the soft drink stand, and the conversation was said to have occurred within the soft drink stand between Wright and a man named Thompson, a third person. The bill of exception does not show the relevancy of the testimony, and for this reason, the...