State v. Hobgood

• Decision Date: 01 May 1894
• Docket Number: 11,549
• Citation: 46 La.Ann. 855,15 So. 406
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. WILLIAM HOBGOOD AND WILEY STAFFORD

15 So. 406

46 La.Ann. 855

STATE OF LOUISIANA v. WILLIAM HOBGOOD AND WILEY STAFFORD

No. 11,549

Supreme Court of Louisiana

May 1, 1894

APPEAL from the Sixteenth Judicial District Court, Parish of Livingston. Reid J.

M. J Cunningham, Attorney General, and B. Edwards, District Attorney, for the State.

Jos. A Reid, Attorney for Defendant and Appellant.

OPINION

MCENERY, J.

The defendants were indicted for the crime of robbery, convicted and sentenced to hard labor.

They appealed.

They present eight bills of exception, including two for overruling separate motions for a new trial.

Bill No. 1 was taken to the ruling of the trial judge in discharging a juror who had been sworn and accepted, but discharged for cause before the completion of the panel.

The juror's wife was related to the accused. She was their second cousin, and this was sufficient for the dismissal of the juror from the panel. The right of the judge to discharge a juror in case of evident moral and physical necessity, is now a part of the fixed jurisprudence of this State established by a number of decisions. In this case the jury had not been completed, and no evidence had gone to the jury. Reason and authority sustain the action of the trial judge. State vs. Costello, 11 An. 283; State vs Diskin, 34 An. 919; State vs. Moncla, 39 An. 868; State vs. Nash and Kid Barnett, 46 An. 194, and cases and authorities cited therein.

Bill No. 2. The question was asked the prosecuting witness for the State on cross-examination if he had sworn to his tax assessments for the last few years. The object of the testimony was, as stated in the bill, to impeach the credibility of the witness, and also as tending to destroy the allegations of ownership of the property in said witness. The witness had testified that he had accumulated the money said to have been stolen before, during and since the war. For neither of these purposes was the testimony admissible. The fact that he did not swear to his assessment, or that he did, has no bearing in the case and was not by itself competent testimony. The fact that if he swore to the assessment, and failed to place the money alleged to have been stolen on the assessment rolls, would not in itself destroy his actual or apparent ownership of the property. His possession of the money without title would be sufficient to support the charge in the indictment. But the effect of the objection was done away with when the trial judge in his ruling permitted the introduction in evidence of such an oath if made. It was not offered in evidence.

Bill No. 3. The witness, Sophenia McLin, having been sworn for the State, to impeach her testimony, a witness was asked on cross-examination, "Do you know what the general reputation for chastity of Sophenia McLin is in the community in which she lives?"

On the objection of the prosecuting attorney the trial judge ruled against the admission of the testimony.

The defendants reserved a bill. They rely upon the case of State vs. Parker, 7 An. 83; State vs. Jackson, 44 An. 160, and McInerny vs. Irwin, 7 So. 841. The practice in our courts has been settled in the first case cited, but it goes no further than to allow the introduction of evidence as to general bad character, so as to show such moral turpitude in the witness that no one would be justified in believing him under oath. In such a case it is not necessary to restrict the inquiry to reputation for truth and veracity, but to show his character was such that the witness would not, from its viciousness, believe him under oath.

The inquiry must be into general character of the witness and not as to any particular act or any particular line of conduct, although after the general reputation is established the witness may, as in the case of State vs. Parker, state the disreputable lines of conduct of the witness, that he was "idle, dissolute, had a notorious character for acting fraudulently and falsely," of extorting money by force and cheating the unwary and feeble, and had no means of support and lived among lewd and abandoned women. From such vices, it is an inference, that no truth can spring.

In the case of State vs. Jackson, 44 An. 160, the testimony received was as to the habits of the witness in associating with lewd and abandoned women. On appeal to this court, we said the inquiry was restricted, and therefore did not come within the reasons stated in the case of State vs. Parker, 7 An. 83.

In paragraph 486, Wharton's Criminal Evidence, it is stated, and supported by reference to many cases in the several State reports, that "it has been held inadmissible, in order to attack veracity, to prove the bad character of a female witness for chastity, or to show that she is a prostitute, or to prove habits of intemperance which do not affect the perceptive or narrative powers."

In the case of McInerny vs. Irwin, 7 So. 841 (Supreme Court of Alabama),...