State v. Green
| Decision Date | 02 January 1906 |
| Docket Number | 15,786 |
| Citation | 40 So. 451,115 La. 1041 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. GREEN |
Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin Kendrick Schwing, Judge.
Sonny Green was convicted of manslaughter, and appeals. Affirmed.
Paul Geddes Borron, for appellant.
Walter Guion, Atty. Gen., and Albin Provosty, Dist. Atty. (Lewis Guion, for counsel), for the State.
Defendant was indicted for murder, found guilty of manslaughter, and was sentenced to imprisonment at hard labor for a term of 18 years.
Defendant relies on his appeal for the reversal of the verdict and sentence on a number of bills of exception, which we will consider in their numerical order.
The district attorney, having offered evidence tending to show that the death of the deceased resulted from a wound inflicted with a 44 or 45 caliber pistol bullet, placed upon the stand the deputy sheriff, who arrested the accused six months after the homicide, for the purpose of proving that on the occasion of such arrest the officer took from the person of the accused a 44 or 45 caliber pistol, which the district attorney presented in open court on the trial of the cause. On objection made by counsel for the accused the jury retired, and the testimony of the witness was reduced to writing. The jury was recalled, and the witness took the stand, whereupon counsel for the accused objected to his testimony on the ground that there was no evidence to show that the pistol in question was used at the time of the alleged homicide, or to identify the said weapon with the homicide, and that said testimony was calculated to prejudice the minds of the jury by inducing them to believe that said pistol was used by the defendant, when it was only taken off his person six months after the homicide, as shown by the testimony of the witness.
The objections were overruled, and the witness testified before the jury as follows:
In his testimony, taken out of the presence of the jury, the witness said in part as follows:
"When I arrested him I found on him the pistol presented here in court, a 44 Colt's, I believe."
Counsel for the accused in this court takes the rather singular position that the witness did not before the jury identify the pistol produced in court as the one found on the accused at the time of the arrest; the statement to that effect being not the testimony of the witness, but only the inference or conclusion drawn therefrom by the clerk. In his bill the counsel, after reciting the testimony of the witness, states that it shows that the pistol in question was taken off the person of the accused. It is evident that the clerk, instead of writing down the colloquy between the district attorney and the witness as to the identity of the pistol, stated the ultimate facts by the recital that the witness "identifies the pistol as the one found on the accused at the time he was arrested." This statement was not objected to at the time, but was accepted as showing the substance of the testimony of the witness as to the identification of the weapon. On the other hand, if the statement of the clerk is inadmissible to supply evidence not taken down, the statement of the trial judge is, and his per curiam shows that "this revolver was produced and identified." This was an undisputed fact, and the objection was that no evidence had been offered to identify the weapon as the one used by the defendant at the time of the homicide.
We think that the testimony was admissible, and that the objection went to the effect of the evidence. While the probative force of the similarity of weapons was very slight yet such similarity was a link in the chain of circumstantial evidence, and the trial judge was not in a position at that stage of the proceeding to determine the pertinency of the testimony, and could not control the order in which the district attorney chose to introduce the evidence for the state.
The proper rule in such cases was laid down in State v. McFarlain, 42 La.Ann. 803, 8 So. 600.
This bill was reserved to the refusal of the judge to have the cross-examination of the same witness before the jury reduced to writing. There was no objection to this cross-examination by the state, and the defendant does not complain of the evidence, but only that it was not written down.
We infer from the bill that the defendant had the benefit of the evidence elicited on such cross-examination. The testimony of this witness was taken in writing out of the presence of the jury at the request of defendant's counsel on the question of its admissibility. The witness was examined and cross-examined, and when he took the stand before the jury the defendant's counsel objected, as already stated, and so much of the testimony as was thus objected to was reduced to writing and annexed to bill No. 1, together with the full testimony of the witness...
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