State v. High

• Decision Date: 15 January 1906
• Docket Number: 15,774
• Citation: 116 La. 79,40 So. 538
• Court: Louisiana Supreme Court
• Parties: STATE v. HIGH

40 So. 538

116 La. 79

STATE v. HIGH

No. 15,774

Supreme Court of Louisiana

January 15, 1906

Rehearing Denied February 26, 1906.

Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.

Ananias High was convicted of shooting while lying in wait and appeals. Affirmed.

Thatcher & Welsh, for appellant.

Walter Guion, Atty. Gen., and James Martin Foster, Dist. Atty (Lewis Guion, of counsel), for the State.

OPINION

PROVOSTY J.

The defendant was convicted of "shooting while lying in wait," the penalty whereof is death, was sentenced, and has appealed.

What his defense was does not appear from the record, unless we are to infer from his having offered to prove threats that he relied on self-defense.

All the parties involved are negroes; defendant and the man who was shot, Sam Walker, were brothers-in-law; the scene was the Wemple plantation, in the parish of Caddo, about 30 miles above Shreveport.

Just after dark, as Sam Walker stepped out upon the gallery of his house, he was shot from out of the darkness. Fortunately he was but slightly wounded. Later the same night, about 3 or 4 o'clock, two shots were fired into the same house at him through a crack in the door. His brother, Dave Walker, had seen defendant in the path leading to the house. From this or perhaps from statements made by defendant the same night after the shooting to a girl named Simpson, suspicion settled on defendant. Search was instituted for him. In the afternoon, at 2 or 3 o'clock, Dave Walker informed the posse that he had heard footsteps in his house in which there should have been no one. The posse explored the house and were leaving, one of them, George Meyers, remarking, "He is not here," when defendant, who was concealed in the house, cried out, "Yes he is here," and at the same time shot down George Meyers. The posse surrounded the house and parleyed with defendant; every man keeping behind a tree. Defendant refusing to surrender, they fired volleys into the house. This brought no result. Meantime George Meyers lay wounded and suffering within the range of defendant's pistols, and no one dared approach to succor him. After a while they asked defendant permission to remove the wounded man, and then to bring him some water; but defendant refused, fearing to let any one approach. In about one hour the deputy sheriff and other white men arrived, and, keeping behind trees like the others, parleyed with defendant. At their request defendant finally allowed the women to come and remove Geo. Meyers. The deputy sheriff testified as follows:

"I told him I had come there for the purpose of arresting him and to protect him, and to come out and surrender. He told me that he did not know me from any one else, and he was not going to surrender; did not have but one time to die and go to hell, and that this was as good a time as any; warned me, if I approached, to look out, that he had two pistols, that he had already shot two, and would get one or two more, as long as his ammunition held out. I argued with him; told him he was mistaken and wrong. He said he did not see it that way; that he did not propose to surrender, that he had been there all day, and was there for the purpose of killing Dave Walker and his wife. He then saw Dave Walker standing off by my side, and he says, 'Yonder is the son of a bitch. I want to get him, and I don't care what you do with me, whether you burn me or not.'"

Vidder Wemple, owner of the plantation, testified as follows:

"He recognized my voice, and asked if that was me, and I said, 'yes.' He said, 'I am not going to surrender to any one.' I told him we would burn the house; he said he did not care a damn; that the house did not cost him anything; one man was not any more than another. He also said that he shot Sam Walker the night before, and that he came in the house for the purpose of shooting Dave Walker and his wife. Finally I told him that it was the sheriff talking and to come out. He said he did not care a damn for the sheriff. After he came out I asked him, 'Ananias, why did you go into that house?' He says: 'I went in there to kill Dave and his wife. If I had killed them I would have been willing for you white people to do what you please, burn me or anything else.'"

Defendant was finally induced to surrender. On the way to jail he spoke freely of the shooting of the night before, detailing the circumstances, and giving his motives. That his wife's brothers were trying to separate him and his wife, and he determined to kill Sam Walker. That he was waiting near the house for that purpose when he heard Walker shut a gate at the lot and start back to the house. That he ran to where he heard him, but was too late. That Walker went into the house, and at once came back to the gallery in order to hang up a saddle on the wall. That for doing this Walker did not get enough of his body outside of the door or he would have gotten him -- meaning would have shot him with more fatal aim. The next morning, in jail, defendant spoke of the shooting to the jailer and to the cook at the jail; and boasted that he had "gotten" two, and was satisfied if he had gotten but one.

The date of the shooting was April 25th. The indictment was found on May 12th. The trial was fixed for May 25th.

Defendant moved for a continuance on the ground of the absence of two witnesses, Bossy and Johnson. By Bossy he expected to prove communicated threats. By Johnson that on the day after the shooting Dave Walker made to the witness the following statement: That he met Ananias coming to Sam Walker's house, and told him not to go there, because Sam Walker would kill him; and that, while they were thus talking, Sam Walker stepped out on the gallery with his gun in his hand, and Ananias shot him. The district attorney admitted that the witnesses, if present, would testify as thus stated, but reserved all objections to the admissibility of the evidence. The court thereupon refused the continuance. Defendant excepted to the ruling, insisting that the district attorney's admission should have been made without reserve of objections.

On the trial, objection was made and sustained to that part of the affidavit for continuance relating to communicated threats and to all other evidence of communicated threats, on the ground that there had been no proof of a hostile demonstration.

Another ruling against defendant was upon his offer to prove that Sam Walker, with the design to seduce the 15 year old sister of defendant, had induced her to leave her home in Harrison county, Tex., clandestinely, to come to him on the Wemple plantation where he was living; the purpose of the evidence being to attack the credibility of Walker as a witness.

Other rulings adverse to the defendant were the following: Permitting the state to prove the confessions; also the firing of the two shots through the crack in the door; also the shooting of George Meyers and attending circumstances, refusing a new trial, and overruling a motion in arrest of judgment.

Bills of exception in due form have brought up all the rulings for review; and we must now proceed to consider them:

1. Continuance. Continuances are very largely within the discretion of the trial court. We see no reason for interfering in this case. The complaint is that the district attorney reserved the right to object to the admissibility of the testimony of the two absent witnesses. We fail entirely to see the force of this complaint. When, for the purpose of avoiding a continuance, an admission is made that the absent witness if present would testify as stated in the affidavit for continuance, the testimony of the absent witness is not thereby made any better than it would be if the witness were present. If the testimony would be inadmissible if the witness were present, it still continues to be so as represented by the affidavit. That is a plain proposition; and, moreover, was expressly ruled on in the case of State v. Chopin, 10 La.Ann. 458. Since the district attorney could have made the objections even if he had not reserved the right to do so, his reserve of the right can certainly not have injured defendant.

2. Confessions. The reasons for objecting to the confessions are tersely and lucidly, and, we may add, somewhat overstrongly, given in defendant's brief, as follows:

"We submit that the judicial mind cannot come from the reading of the testimony attached to this bill without the conclusion that this negro boy of 26 years, who had never been in trouble before, had never been arrested or charged with crime, who had not been a rowdy or used to disorderly scenes, but a peaceable, law-abiding, hard-working man, could not have gone through the experiences of that afternoon (as an incident of which he had been compelled to shoot Geo. Meyers), with this cursing crowd threatening his life and shooting into the house at him with guns and pistols, without being in such a condition of mental excitement that he could not have been responsible for his utterances, and that he was certainly in no condition of mind to make a statement worthy of being dignified as a confession. The whole testimony as to what he said and did shows this. He submitted to arrest when the deputy sheriff finally succeeded in assuring him that he would be protected from Dave Walker and the others.

"Moreover, part of the alleged confession is shown to be untrue, viz.; the statement that he had gone to Dave Walker's house for the purpose of killing Dave and was only waiting for a chance; for the testimony showed that Dave and his wife had visited the house that day and left it without being molested or even discovering the presence of defendant."

We find no support in the record for the statement...