State v. Heintz
| Decision Date | 01 February 1932 |
| Docket Number | 31573 |
| Citation | 140 So. 28,174 La. 219 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. HEINTZ |
Rehearing Denied February 29, 1932
Appeal from Criminal District Court, Parish of Orleans; J. Arthur Charbonnet, Judge.
Floyd Heintz was convicted of robbery, and he appeals.
Affirmed.
Ulic J Burke, of New Orleans (Loys Charbonnet and Joseph A. Casse both of New Orleans, of counsel), for appellant.
Percy Saint, Atty. Gen., and Eugene Stanley, Dist. Atty., and Chandler C. Luzenberg, Jr., Asst. Dist. Atty., both of New Orleans, for the State.
The defendant was convicted of robbery, and sentenced to serve not less than nine nor more than fourteen years at hard labor in the state penitentiary, and appealed.
The only bill of exception argued before this court is the one reserved to the ruling of the trial court refusing to grant defendant a new trial.
The basis of the motion is that since the trial and conviction defendant has discovered new evidence which it is alleged was not discovered before the trial, and which, if admitted on a second trial, would change the results.
The only new evidence discovered by defendant is that which, it is alleged, tends to impeach the testimony of Miss Lena Miller, the state's chief witness at the trial. Miss Miller was the person robbed, and the only witness called by the stateto prove it. That she was in fact robbed of the sum of $ 940, which she was carrying in her purse, is not questioned. But defendant denied that he was the person who robbed her, and attempted to prove an alibi, which defense was rejected by the jury.
Miss Miller testified on the trial that she was driving her automobile along a street in New Orleans when another automobile driven by one man with another standing on the running board, overtook hers and crowded it so close to the curb on the right-hand side of the street that she was forced to stop; that, when she stopped, the man on the running board of the other car demanded that she deliver to him her purse with its contents, otherwise he would kill her; that upon her refusal he struck her with a revolver and then attempted to take the purse from her and that a struggle ensued; that her assailant, not being a strong man physically, was about to fail in his attempt, when the other man who had driven the car got out, came to the assistance of his companion or associate; and that the two overpowered her and took the purse, with its contents, and escaped.
Several days later, defendant was arrested as a suspect and carried to police headquarters and Miss Miller was sent for. She testified on the trial that she was shown a great number of persons at police headquarters (one hundred or thereabouts), and that, while she was not personally acquainted with defendant and had never seen him before the day of the robbery, she pointed him out and identified him as the man who had driven the automobile and who had assisted in the robbery.
While on the stand, she said repeatedly that defendant was the man. She identified him positively in court, and said she could not be mistaken. While her testimony was not corroborated, the jurors seem to have been satisfied with her identification of the accused, and we can well see why they should have been, as the robbery took place in broad daylight and she had ample opportunity to observe her assailants. The other participant in the holdup was not arrested, but Miss Miller gave an accurate description of him also, stating that he was a tall slender man with high cheek bones.
The court was asked to grant a new trial in order that defendant might call certain witnesses whose testimony it is alleged would impeach that of Miss Miller given on the trial concerning her identification of the accused.
The general rule is that the verdict or a jury will not be set aside and a new trial granted for the sole purpose of enabling the accused to impeach testimony admitted on the trial. This rule is repeated in numerous decisions of this court, and is announced by the text-writers generally. State v. Patterson, 150 La. 114, 90 So. 532; State v. Preuett, 142 La. 720, 77 So. 514; State v. Folden, 135 La. 791, 66 So. 223; State v. Serio, 137 La. 517, 68 So. 847; State v. Feducia, 138 La. 974, 70 So. 1010; State v. Bordelon, 141 La. 611, 75 So. 429; State v. Young, 107 La. 618, 31 So. 993; State v. Maxey, 107 La. 799, 32 So. 206; State v. Gauthreaux, 38 La.Ann. 608; State v. Johnson, 30 La.Ann. 305; Archbold's Criminal Practice & Pleading, pp. 649-653; Wharton's U.S. Criminal Digest, pp. 458, 459; Cyc. vol. 12, p. 741; 16 C. J. 1202, § 2729; 20 R. C. L. 294, § 76.
If this general rule has ever been departed from in this state, our attention has not been called to the case, and we have not been able to find one.
However, in the case of State v. Washington, 108 La. 226, 32 So. 396, 397, the court, after repeating the above general rule,said:
The case at bar presents no "exceptional feature." Defendant was convicted on April 30, and on May 7 a man named Martin says he went with his sister, Mrs. McGuire, to a drug store for the purpose of seeing "to what extent Miss Miller was certain of her identification of Floyd Heintz (the defendant)," and that while they were there Miss Miller came in and sat at a table for a few minutes, when he and his sister walked out to their car, and that as they were about to start the car Miss Miller came out and said
Upon his denial that he was the man, he says that Miss Miller asserted that he was and said she had witnesses to prove it, and wanted him to go to Capt. Lannes' house and "he could tell you whether you were the man or not." He says she further told him that, if he would tell her who robbed her and thus assist her in getting her money back, she would do all she could for Floyd Heintz.
Mrs. McGuire, Mrs. Cauther, and Mrs. Heintz say they went to the residence of Miss Miller on the night of May 6, and asked her in the presence of a detective if she was positive that Floyd Heintz was the man who had robbed her, and that said to Mrs. Heintz:
"If you will help me find the man who drove the Oldsmobile the Saturday night before your son was arrested, I will go down and do all I can to have your son released."
They say that Miss Miller further told them that on Saturday...
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...State v. Kennedy, La., 8 Rob. 590; State v. Simpson, 184 La. 190, 165 So. 708; State v. Wilburn, 196 La. 113, 198 So. 765; State v. Heintz, 174 La. 219, 140 So. 28; State v. 176 La. 481, 146 So. 29; State v. Davis et al., 178 La. 203, 151 So. 78; State v. Capaci, 179 La. 462, 154 So. 419; S......
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