State v. Huff

• Decision Date: 02 December 1918
• Docket Number: 23167
• Citation: 80 So. 551,144 La. 318
• Court: Louisiana Supreme Court
• Parties: STATE v. HUFF

80 So. 551

144 La. 318

STATE v. HUFF

No. 23167

Supreme Court of Louisiana

December 2, 1918

Rehearing Denied January 6, 1919

Minos T. Gordy and Walter B. Gordy, both of Abbeville, for appellant.

A. V Coco, Atty. Gen., and Preston J. Greene, Dist. Atty., of Abbeville (Vernon A. Coco, of New Orleans, of counsel), for the State.

OPINION

PROVOSTY, J.

The accused was convicted by a jury of assault with intent to rape, was sentenced to a term of not less than two years and not more than three years at hard labor, and has appealed.

The first bill of exceptions is to the action of the trial judge in allowing the husband of the prosecutrix to remain with her in the courtroom while all the other witnesses were excluded.

This was a matter within the discretion of the court. 12 Cyc. 546 547; Marr's Crim. Juris. 713; State v. Suire, 142 La. 101, 76 So. 254; State v. Hardy, 142 La. 1061, 78 So. 116.

The second bill shows as follows:

'The district attorney, in his opening argument to the jury and in discussing the facts of the case, declared to the jury:

'If such crimes as the evidence in this case shows to have been committed could go on without punishment, it meant doubt that when you bid your wives and daughters farewell in the morning that you will return and find them safe and sound.'

'The counsel for the defense objected to the above statement of the district attorney on the ground that the same was an appeal to the prejudice of the jury. Whereupon the court instructed the jury that they were required to decide the case on the evidence adduced before them on the trial of the case, and not on the statement of counsel, and to disregard any appeal not supported by the evidence.

'The court thought it proper to so instruct the jury, for the reason that the district attorney was discussing the facts of the case and stating his deductions therefrom, and not because the argument of the district attorney was an improper one, for it was not.

'The district attorney, upon resuming his argument, repeated the statement above quoted to the jury, and the counsel for the defense renewed his objections thereto and requested the court to put an end to such argument. The court declined to add to its instructions previously given to the jury.'

Here the district attorney was not stating, or commenting on, a fact outside of the evidence, as was the case in State v. Thompson, 106 La. 362, 30 So. 895, relied on by accused, but was arguing that, if the crime of rape went unpunished, the wives and daughters of the community would not be safe. This, in our opinion, was legitimate argument. Cases of State v. Risso, 131 La. 946, 60 So. 625; State v. Meche, 114 La. 231, 38 So. 152; State v. Gallo, 115 La. 746, 39 So. 1001; State v. Spurling, 115 La. 789, 40 So. 167; State v. Young, 114 La. 686, 38 So. 517; State v. Romero, 117 La. 1003, 42 So. 482; State v. Riggio, 124 La. 614, 50 So. 600; State v. Johnson, 133 La. 63, 62 So. 407 -- and others too numerous to be all cited, where comment by way of argument based upon evidence is held to be legitimate, however severe.

The next and last bill is to the refusal of a new trial, asked for on the ground of newly discovered evidence.

One of the new witnesses would testify that before the day of the assault the accused went at will to the house of the prosecutrix; the object of this evidence being, not to show or intimate, that any improper relations had theretofore existed between the parties, but simply to contradict the prosecutrix in a statement made by her on the witness stand that before the time of the assault the accused had never been alone with her in her house. It was an undisputed fact on the trial that the accused and the prosecutrix and her husband had been on the friendliest terms, and...