State v. Harris

• Decision Date: 01 May 1893
• Docket Number: 11,271
• Citation: 45 La.Ann. 842,13 So. 199
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. ELIAS A. HARRIS

13 So. 199

45 La.Ann. 842

THE STATE OF LOUISIANA v. ELIAS A. HARRIS

No. 11,271

Supreme Court of Louisiana

May 1, 1893

APPEAL from the Fourth District Court, Parish of Grant. Ware J..

M. J Cunningham, Attorney General, and R. E. Milling, District Attorney, for the State, Appellee.

R. P Hunter, for Defendant and Appellant.

OPINION

McENERY, J.

The accused was indicted for murder and convicted of manslaughter and sentenced to hard labor. He appealed.

There are several bills of exceptions in the record.

No. 1 contains a variance of statement of facts between counsel and trial judge. On the repeated rulings of this court, we accept the latter's statement. It completely destroys the effect of the bill. The statement also shows that the district attorney withdrew his objection to the introduction of proof, without first showing an overt act on part of deceased, of threats communicated to the accused.

The second bill is as follows:

"When the State had offered the testimony of the witnesses Walter Neal and Fleet Tillman to show that after the difficulty between accused and deceased had occurred, and after the deceased had gone home, some two hundred yards, Fleet Tillman, the son of the deceased, returned to the house of accused to get his father's cap and a piece of the ear of said Tillman, deceased, which in the scuffle subsequent to the firing of the shot had been bitten or torn off by the accused, and that the accused had kicked the cap toward the boy and told him to get out of his yard, and that on the discovery by the boy of the piece of ear lying on the ground, the accused had put his foot on it and stamped it. Counsel for accused objected to the introduction of said evidence as not constituting a part of the res gestae, that the subsequent acts of the accused, away from and out of the presence of the deceased, and fifteen or twenty minutes after the difficulty was over, could not be connected with the difficulty itself in any way and that such proof could only be offered to prejudice the minds of the jury against the accused, and draw their minds away from the facts of the homicide, which objections were overruled by the court and the testimony admitted for the following reasons, viz.: the evidence shows that the only means Tillman had to prevent accused from shooting him again was to close with him, and in the scuffle that ensued the ear or a portion of the ear of the deceased was bitten off. The facts detailed in defendant's bill occurred so shortly after the shooting by accused as to constitute them a part of the res gestae and are also admissible to show the feelings of the accused at the time of his attack upon the deceased."

The tendency of recent adjudications is to extend rather than to narrow the scope of the introduction of evidence as part of the res gestae. As a general rule, when it is necessary to inquire into the general nature of the act committed, or the intention of the party who did the act, proof of what the person said at the time of doing it is admissible evidence as part of the res gestae, for the purpose of showing its true character. The general rule also is that the declaration sought to be proved must be contemporaneous with the event sought to be proved as the principal act; but when there are connecting circumstances they may, even when made some time afterward, form a part of the whole res gestae. 8 Wallace, 397; 55 Penn. 402; 57 Mo. 93; 34 American Reports, 479; 38 An. 459, 949; 44 An. 958.

Mr. Taylor, in the Law of Evidence, gives the fourth rule for the test of the admissibility of such evidence, as follows:

"That an act can not be varied, qualified, or explained by a declaration which amounts to no more than a mere narration of a past transaction, nor by an isolated conversation, nor by an isolated act done at a later period." Taylor on Evidence, paragraph 523.

The trial judge's statement is that the ear had been severed in the fight, and that this fact had been proved.

The finding of a piece of the ear on the ground, immediately after the difficulty, was a fact competent to be proved, to show the fact of the severance of the ear, and the wounds inflicted upon the deceased. The act of stamping upon the ear, and the refusal to give it to the boy, was a fact contemporaneous with the discovery of the ear, and inseparable from the narration of its discovery by the boy. The refusal to let the boy have the piece of ear was also competent and admissible evidence to prove that the accused endeavored to suppress evidence as to the fact of its having been torn or bitten off during the fight.

The incident of kicking the cap toward the boy, and ordering him to leave his premises, is so insignificant that it would be an absurdity and a denial of justice to disturb the verdict because...