State v. Gianfala

• Decision Date: 30 June 1904
• Docket Number: 14,946
• Citation: 113 La. 463,37 So. 30
• Court: Louisiana Supreme Court
• Parties: STATE v. GIANFALA

37 So. 30

113 La. 463

STATE v. GIANFALA

No. 14,946

Supreme Court of Louisiana

June 30, 1904

PROVOSTY, J. BREAUX, C.J., adheres to the opinion heretofore handed down.

OPINION On Rehearing.

After a rehearing had been granted in this case, the court, through the Chief Justice, handed down for the guidance of counsel the following:

"The court indicates the lines along which specially it would be pleased to hear argument in this case:

"First. Whether or not the asserted remarks of one of the jurors said to have been overheard by the deputy sheriff, were prejudicial to the accused, to the extent rendering it legal to set aside the verdict, and all questions relating to the asserted remark.

"Second. Whether or not the confession made by the accused while held by some one, and while the wife of the deceased was acting as the testimony discloses she was, should have been excluded as not being voluntary.

"Third. Whether or not the deceased had hope of recovery when he made his dying declarations, and whether the dying declarations should be excluded.

"Fourth. Whether the testimony of Mrs. Rosheger, wife of the deceased should have been excluded, and whether the grounds set forth in the bill of exception No. 14 were sufficient to exclude her testimony."

The case has been reargued along these lines, and additional briefs have been submitted.

On the first of these grounds the attention of the court has been called to the fact that it is not stated or attempted to be proved by the defendant that the knowledge of the misconduct or disqualification of the juror did not come to him before verdict. So far as the court is informed, the defendant may have known of this irregularity before verdict. If so, it was not ground for new trial. And the burden was on the defendant both "to aver and show affirmatively that both he and his counsel were ignorant of the misconduct charged until after the trial." 12 Ency. P. & P. 558; 17 A. & E. Ency. of L. 1206; State v. Dorsey, 40 La.Ann. 739-743, 5 So. 26; Prof. Jury Trial, § 194.

We pass to the second ground, namely:

"Whether or not the confession made by the accused while held by some one, and while the wife of the deceased was acting as the testimony discloses she was, should have been excluded, as not being voluntary."

The facts are these: The fatal encounter took place in front of the shop of Rosheger, the deceased, on the banquette. The two men scuffled and fought, and fell together, and continued fighting on the ground, and the fatal shot was fired during the scuffle. The first person to reach the combatants was the wife of the deceased and one August Palumbo, both of whom came out of the shop. The next person to reach the scene was T. B. Gooch. The scuffling was still going on; the combatants being down on the banquette, fighting and struggling. A number of persons came up. Gooch kicked the pistol out of the hand of Gianfala, and he and the witness Penny separated the two men. Penny and Gooch assisted Rosheger into his shop, and then into his sleeping room, back of the shop, and laid him on his bed. They then returned to the gallery. By that time quite a crowd -- "a big crowd" -- had gathered; and one Hausmann, who had grabbed Gianfala, was holding him. At that moment Mrs. Rosheger, the wife of the deceased, who had gone to the telephone office and returned, jumped upon Gianfala, in an access of fury, "and clawed him and bit him and tore his clothes"; and it was while this was going on that the statement sought to be introduced as a confession was made, namely, Mrs. Rosheger said to Gianfala, "You killed my husband;" and he answered, "You called my wife a s of a b ."

This statement of the accused was admitted by the judge a quo on the double ground that it was res gestae and a confession. It was admissible on neither ground.

It was not admissible as res gestae, because Gianfala had had time to regain his composure sufficiently to get up a story to excuse or palliate his act. His victim had been taken inside the house, and he had been left outside on the banquette with the crowd that had gathered, and sufficient time had elapsed for Penny and Gooch to have assisted the wounded man onto the gallery and across the shop and into his sleeping room, and laid him upon his bed, and to have retraced their steps to the gallery. How long this had taken, is not known, as no one kept the time, but Mrs. Rosheger had had time to go to the telephone office and return. Gianfala had had time to collect himself sufficiently to notice some cartridges of his on the ground, and to try to pick them up. This action presupposes some degree of deliberation, and is of itself sufficient to show that in what he did or said thereafter he was not necessarily the mere passive instrument or mouthpiece through which acted or spoke the excitement of the scene he had just been through, but may well have been at himself, and bethinking him of what was best to be done or said in the predicament in which he found himself. The probability of the statement having been a concoction is increased by the fact that Mrs. Rosheger denies its truth -- asserts positively that she never made use of the vile expression thus attributed to her.

Moreover, the statement was provoked by the accusation of the wife, "You killed my husband." It was made in response to that accusation, and by way of justification against it. When it was made a new combat had begun, which necessarily had had the effect of drawing the thoughts of Gianfala away from the past transaction and concentrating them upon the immediate crisis. He was being furiously belabored by the woman. Whether the description given of her by the counsel for the state (a frail woman) or that by counsel for the defense (a virago) fit her best is immaterial, since, however frail she was, her assault was enough to attract and absorb for the time being the attention of the subject of it. The mere arrest of a man has a sobering effect upon him -- casts a damper upon his excitement. Now, if, in addition, while he is in custody, an infuriated woman fall upon him tooth and nail, it is hardly to be supposed that he will remain so unmindful of the actualities of the present as to continue to be the mere passive instrument or mouthpiece of the excitement of the past event. And in order that anything said after an event should be considered part of it, within the meaning of the law of res gestae, the speaker must be supposed to have been prompted to speak solely by the excitement of the event. In other words, it must have been the event speaking through him. State v. Charles, 36 So. 29, 111 La. 933; 1 Greenleaf, Ev. § 110; Whart. Cr. Ev. 262.

To illustrate: Suppose that, instead of the statement in question, Gianfala had said: "I shot your husband because I saw him make a movement to draw a weapon upon me, and I thought he was going to shoot me. I only shot in order to be ahead of him." And suppose that, instead of the state, it was Gianfala who was contending that words uttered under the circumstances in question were res gestae. Would it not be answered to him at once that the story was a concoction? Assuredly it would. And yet, while defending himself as best he could from the attack of this infuriated woman, he might well have made just such a statement.

Nor was this statement admissible as a confession. It was made while Gianfala was being furiously assaulted as he was being held, and this in the presence of a more or less excited crowd. He a foreigner in their midst, probably understanding their language but imperfectly. Under these circumstances, he may well have been in fear, and may well have hoped to mitigate his act, and allay whatever animosity there might be against him in the crowd by bringing in his wife, and claiming that in what he had done he had acted in defense of her good name. Here is fully made out, we think, one of the main grounds of rejecting confessions -- the danger of their not being true, and of their having been induced by hope or fear. 1 Greenleaf, § 214. "The admission of a confession," says Mr. Rice, in his work on Crim. Ev. vol. 3, § 311, quoting the Supreme Court of Tennessee, "is made to depend upon its being free of the suspicion that it was obtained by any threats or severity or promise of favor, or of any influence, even the minutest."

Here we think, there was a strong influence operating upon this accused, situated as he was, to say something, whether true or false, to excuse or palliate his act. We know as a fact, from the testimony of Mrs. Rosheger, that this story was a fabrication; and we cannot escape the very strong suspicion that the Italian, as he was...