State v. Howard
| Decision Date | 07 May 1956 |
| Docket Number | No. 42791,42791 |
| Citation | 230 La. 327,88 So.2d 387 |
| Parties | STATE of Louisiana v. Edward 'Nig' HOWARD. |
| Court | Louisiana Supreme Court |
A. V. Pavy, Edward V. Pavy, Opelousas, for defendant-appellant.
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. Y. Fontenot, Dist. Atty., Morgan J. Goudeau, III, Asst. Dist. Atty., Opelousas, for appellee.
Edward 'Nig' Howard was charged by indictment with having committed a battery with a dangerous weapon upon Mario Termini. He was tried, convicted, and sentenced to serve four years at hard labor in the State Penitentiary. From that conviction and sentence, he appeals.
The State's answer to a motion for a bill of particulars discloses that the defendant was charged with having shot Mario Termini. At the time of the alleged crime, the defendant, a caretaker for the Second Lake Pleasure Club located on Second Lake, was on the club's private property and Termini was in a boat on Second Lake, a public body of water.
Eight bills of exceptions were reserved during the course of the trial.
Bill of Exceptions No. Six was reserved to the action of the trial judge in overruling the motion to quash the indictment. This motion was predicated on the contention that the sessions of the Grand Jury were not conducted in conformity with LSA-Revised Statutes 15:215, in that the testimony of witnesses was transcribed by a recording machine instead of by a sworn stenographer. Having waived his immunity, the defendant was present at the session of the Grand Jury.
LSA-Revised Statutes 15:215 provides:
'The sessions of the grand jury shall be secret, but the district attorney, as their legal adviser, shall have free access to said sessions; the district attorney may cause the testimony taken before the grand jury to be reported by a stenographer, who must be first sworn by the foreman of the grand jury; and whenever a witness is unable to speak the English language, the grand jury shall have the right, at its discretion, to employ an interpreter to translate the testimony of the witness, but such interpreter shall be first sworn to keep secret the proceedings of the grand jury.'
The above statute permits the district attorney to have access to the sessions of the Grand Jury and to have the testimony taken by a sworn stenographer. He is the legal adviser of the Grand Jury, and as a rule the testimony is taken for his use.
Bill of Exceptions No. Six does not disclose that any unauthorized person appeared before the grand jury, nor does it disclose that any unauthorized person played the record or that anyone who had not taken an oath of secrecy transcribed the recorded testimony.
Defendant relies on the case of State v. Watson, 34 La.Ann. 669, in which we held that the judge's appointment of a citizen, who was not a member of the Grand Jury, as a clerk of that body was unauthorized by law and could be made the ground of a motion in arrest of judgment. That case is inapplicable, as in the instant case there was no unauthorized person before the Grand Jury.
Bill of Exceptions No. One was taken to the ruling of the trial judge in sustaining the State's objection to the cross-examination of Mrs. Ed Phillips, a State witness. The defendant was attempting to prove, by cross-examination of Mrs. Phillips, hostility, interest and bias in the case, by showing that there was a previous difficulty between Mrs. Phillips and Mr. Lawrence Thistlethwaite, a member of the Board of Managers of defendant's employer, Second Lake Pleasure Club.
The State contends that the cross-examination of Mrs. Phillips, relative to a previous difficulty with someone other than the accused, was entirely foreign to the case, and that the evidence would have been irrelevant and immaterial.
LSA-Revised Statutes 15:492 provides:
'When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.'
In the case of State v. Graziani, 168 La. 297, 121 So. 872, 874, this Court stated:
'* * * A witness may always be cross-examined touching his interest, or want of interest, in the case on trial; that is a matter affecting his credibility, and a proper matter for the consideration of the jury in passing thereon.'
In State v. Leahy, 175 La. 659, 144 So. 138, 140, we further said:
The purpose of the cross-examination in the instant case was to show a dispute with a third person, not with the accused.
In the case of State v. Cullens, 168 La. 976, 123 So. 645, 647, this Court held that the trial court was correct in sustaining an objection to testimony on cross-examination as to whether the defendant's father had the witness' father arrested on a charge of highway robbery. The question was propounded for the alleged purpose of showing bias or prejudice on the part of the witness against the defendant. We stated:
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State v. Revere
...but such interpreter shall be first sworn to keep secret the proceedings of the grand jury.'4 In the recent case of State v. Howard, 230 La. 327, 88 So.2d 387, there was no unauthorized person in the grand jury room, it being conceded the recording machine there used was operated by the dis......
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State v. George
...witness is not in a position to testify affirmatively to the reputation of an accused unless he had heard it discussed. State v. Howard, 230 La. 327, 88 So.2d 387 (1956); State v. Warren, 138 La. 361, 70 So. 326 In the instant case, the witness had already testified that he had never heard ......
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State v. Frentz
...objection to reputation evidence of this character was apparently founded upon erroneous expressions to the contrary in State v. Howard, 230 La. 327, 88 So.2d 387 (1956), by way of dicta. As a matter of fact, the better view expressed by all textwriters is that the reputation-witness should......
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State v. Jackson
...the other side is allowed to introduce details of the offense for the purpose of counteracting this testimony. State v. Howard, 230 La. 327, 88 So.2d 387 (1956); State v. Wilson, 26 Wash.2d 468, 174 So.2d 533 (1946); State v. Rush, 248 Or. 568, 436 P.2d 266 (1968). Evidence of the real natu......