State v. Foster

• Decision Date: 30 June 1921
• Docket Number: 24663
• Citation: 89 So. 680,149 La. 521
• Court: Louisiana Supreme Court
• Parties: STATE v. FOSTER et al

89 So. 680

149 La. 521

STATE v. FOSTER et al

No. 24663

Supreme Court of Louisiana

June 30, 1921

Rehearing Denied October 4, 1921

Appeal from Fourth Judicial District Court, Parish of Union; J. B Crow, Judge.

Jim Foster and Smith Canterbury were convicted of assault with a dangerous weapon and inflicting a wound less than mayhem, and from the conviction and sentence they appeal.

Conviction and sentence set aside, and case remanded.

J. W Elder, of Farmersville, for appellants.

A. V. Coco, Atty. Gen., and S. L. Digby, Dist. Atty., of Farmersville, for the State.

MONROE, C. J. O'NIELL, J., concurs.

OPINION

MONROE, C. J.

Defendants prosecute this appeal from a conviction and sentence under an indictment which charges that they "did willfully, maliciously, feloniously, and unlawfully make an assault upon one Joe Cartledge with a dangerous weapon, to wit, a knife, and did then and there inflict a wound less than mayhem upon him, the said Joe Cartledge, contrary," etc.

The indictment was, no doubt, drawn to charge the offense of inflicting a wound less than mayhem with a dangerous weapon, as denounced by section 794 of the Revised Statutes, but the pleader incorporated therein the words "make an assault upon," which are not in that section, but are to be found in section 793; the two sections reading as follows:

"Sec. 793. Whoever shall, with a dangerous weapon or with intent to kill, make an assault upon another person, * * * shall, on due conviction thereof, suffer fine or imprisonment, or both, at the discretion of the court.

"Sec. 794 [as amended and re-enacted by Act 17 of 1888]. Whoever shall willfully and maliciously, with a dangerous weapon, or with intent to kill, inflict a wound less than mayhem upon another person, shall, on conviction, be imprisoned not exceeding two years, with or without hard labor, and fined not exceeding one thousand dollars."

According to the weight of authority, where distinct offenses, denounced by different statutes, are charged in one count of an indictment, the charge is bad for duplicity; but exceptions to that rule are recognized where a minor offense so charged is necessarily included in the major offense, or where, though the language is applicable to either of the statutory offenses, it clearly indicates the commission of but one act by defendant. 22 Cyc. p. 385, 2; 3 Cyc. 1036, b, citing various authorities, including State v. Taylor, 35 La.Ann. 835, and State v. McTier, 45 La.Ann. 440, 12 So. 516, which cases are applicable in all respects to that here presented, but neither of them explains why a prosecuting officer, instead of following the language of the statute under which he draws an indictment, should unnecessarily confuse with it the language of another statute.

The record before us discloses three bills of exception.

Bill No. 1 was reserved to the refusal of the trial judge to instruct the jury that, other than the verdict "Guilty as charged" or "Not guilty," they could find either of the following, to wit: "First, assault with a dangerous weapon; second, assault and battery; third, assault."

There is no statement of facts or resume of the evidence incorporated in the bill, and the reasons assigned by the judge for refusing the requested charge are: (1) That the requested verdicts would not be responsive to the charge laid in the indictment; (2) that there was no evidence to warrant such charge.

The finding last mentioned, in the absence of any evidence or statement in regard to any evidence by defendants' counsel, is conclusive against the maintenance of the bill, since a judge is not required to give instructions to a jury which would be irrelevant to any facts established or evidence adduced. State v. Powell, 109 La. 727, 733, 33 So. 748; State v. Pastor, 111 La. 717, 35 So. 839; State v. Matthews, 111 La. 962, 966, 36 So. 48; State v. Anderson, 120 La. 331, 335, 45 So. 267; State v. Kemp. 120 La. 378, 45 So. 283.

Bill No. 2 was intended to supply the deficiency in bill No. 1 by setting forth the theory of the defense with what purports to be a summary by defendants' counsel of the evidence adduced on the trial, to which is added a statement by the judge in which he finds that the "summary" is not a full and fair statement of the evidence, and thereupon proceeds to point out what he conceives to be its errors and omissions, making part of his statement the reasons and findings assigned for the ruling to which bill No. 1 was reserved.

He concedes that defendants "set up a sort of plea of self-defense which [quoting the statement] in my opinion and in the opinion of the jury was fragile," and that "the two defendants swore that M. B. Cartledge [a brother of the prosecuting witness] came up on a horse about the time the fight began," but he says:

"The evidence showed that the two accused went to the home of the prosecuting witness, called him out of the house, and asked him if he had said a certain thing, whereupon he answered that he had, and that he had seen that thing; and thereupon the accused Canterbury told the accused Foster to 'go on him,' and Foster said, 'You are a demned liar,' and, with a swing of his knife, cut the prosecuting witness on the throat from just below the ear to a point near the corner of the chin, inflicting a serious wound of about 3 1/2 inches in length, with an opening, according to the attending physician, as large as a man's finger. About that time the prosecuting witness' brother had run up and was trying to prevent any further injury, when the accused Canterbury pulled said brother away from the other parties."

On the other hand, according to the "summary" of their counsel, defendants testified that the prosecuting witness at first denied that he had said what he was asked about, but (according to Foster's testimony) when his brother, M. B Cartledge, came up, he then said that he had, and thereupon he (Foster) cut Joe Cartledge, being fearful that he was going to be attacked by Joe Cartledge and M. B. Cartledge. And Canterbury testified that he and Foster went to the scene of the difficulty, called Joe Cartledge out of his house, and asked him what he had been saying about him (or them); that Cartledge at first denied that he had been saying anything, but, when his brother came running up and said that they were ready for them, Joe Cartledge and Foster began fighting, and M. B. Cartledge ran by him (the witness) towards Foster; that witness tried to grab him, and that he saw M. B. Cartledge take a pistol out of his pocket of his jumper and put it in his coat pocket. The judge, it may be added, also states that there was testimony to the effect that shortly before defendants appeared at Cartledge's house they had left certain other premises, stating it to be their intention to go over to Cartledge's and "fix or kill him"; that it was shown that they were the aggressors throughout and struck the first blow (with the knife), and that they had been fairly tried and justly convicted. But he does not deny that they testified as above stated; and, for the purposes of the present inquiry, it is immaterial what our learned brother may have thought or what we may think concerning the credibility of that testimony, the jurisdiction to determine all questions of fact bearing upon that of guilt or innocence in criminal cases, and, incidentally all questions of the credibility of testimony being vested in the juries, and not in the judges. Const. art. 179. It can hardly be denied that the tendency of the testimony given by defendants, however impotent the judge may have considered it in actual effect, was to rebut that of the...