State v. Jackson

• Decision Date: 26 November 1917
• Docket Number: 22655
• Citation: 77 So. 196,142 La. 540
• Court: Louisiana Supreme Court
• Parties: STATE v. JACKSON

77 So. 196

142 La. 540

STATE v. JACKSON

No. 22655

Supreme Court of Louisiana

November 26, 1917

SYLLABUS

(Syllabus by the Court.)

Where on a trial for alleged murder, in which the plea of self-defense is relied on, the trial judge, in his general charge, fully and correctly instructs the jury as to the law applicable thereto, he cannot be required to give a special charge upon the same subject, which is based upon premises and hypotheses which he considers unduly favorable to defendant.

The fact that counsel representing the state in a criminal prosecution in his closing argument has his memory refreshed concerning part of the testimony of one of the witnesses by having the stenographer read the same from his notes is not a sufficient reason why the judge should be required to allow defendant's counsel to interrupt the argument by having the stenographer read the testimony of other witnesses.

The criminality of an act consists not merely in its perpetration, but in its being perpetrated in violation of the penal laws of the place where perpetrated, hence the fact and place of perpetration are equally ingredients of the crime, and alike should be proved beyond reasonable doubt in order to a conviction; but when it has been so proved that the act was perpetrated in a state where a state-wide law makes it a crime, the question whether the happening took place in one political subdivision or another is one which is likely to concern merely a question of the place and court in which it is to be prosecuted, and in that respect proof of the venue by a preponderance of the evidence, to the satisfaction of the jury, is sufficient.

The question of venue in a criminal case, in so far as it is one of fact, is within the province of the jury to decide, and this court is without jurisdiction to review the finding of a jury upon that subject. O'Niell, J., dissenting.

Dale, Young & Dale, of St. Joseph, for appellant.

A. V. Coco, Atty. Gen., and Jos. M. Reeves, Dist. Atty., of Vidalia (Hugh Tullis, of Vidalia, and Vernon A. Coco, of New Orleans, of counsel), for the State.

PROVOSTY, J., concurs in the decree, and hands down reasons.O'NIELL, J., dissents, and hands down reasons.LECHE, J., takes no part.

OPINION

MONROE, C. J.

Defendant, having been indicted for murder, alleged to have been committed in the parish of Concordia, filed a plea to the jurisdiction and motion to quash, on the ground that the offense, if committed, was not committed in that parish; and the plea and motion having been overruled, he (without taking any bill of exception) appealed to this court, by which the appeal was dismissed, on the ground that an appeal in such case lies only from the final judgment. State v. Jackson, 140 La. 681, 73 So. 770. The trial was then proceeded with in the district court, and certain bills of exception were reserved which will now be considered.

Bill No. 1 was reserved to the refusal of the court to give the following special charge, to wit:

'Gentlemen of the Jury: The court charges you that, if you find that the deceased was the aggressor in a difficulty which occurred shortly before the killing, and in a few minutes after without new provocation he again attacked defendant, beating him over the head with bottles, cutting him therewith to the skull, and fracturing part of the same, and that defendant, on getting away, armed himself with a pistol to protect himself against the deceased, upon meeting whom, unexpectedly, the motions, actions, and threats of deceased, and other surrounding circumstances seen and heard by defendant, were such as to induce a reasonable belief that deceased intended then and there to kill defendant, or to do him great bodily harm, and defendant, believing that his life was in danger, or that deceased was then about to do him great bodily harm, * * * acted upon the belief that the killing was necessary in self-protection, it is enough to excuse the homicide.'

The court assigns the following reasons for its refusal to give the requested charge, to wit:

'Because the court thought the charge unduly stressed certain portions of the evidence bearing upon the point, without taking note of the fact that there was other evidence on the same point, which, in the court's opinion, was unfavorable to the accused; and also because the court had already, both in its general and special charge, fully and fairly instructed the jury on the law of self-defense, substantially, as follows.'

And then follows a charge upon the law of self-defense which fully covers the point presented by the bill, as will appear from the following excerpt:

'That to entitle a party to the right of resorting to this extreme measure of taking the life of another, the party committing the homicide must have reason to believe, and must honestly believe, from all the facts and circumstances attending and surrounding the homicide and immediately preceding it, as they appear to him, that he is in imminent danger of losing his life, or suffering great bodily harm. That the danger need not be actual, but it is quite sufficient if the danger is only apparently actual and imminent, to the honest belief of the person taking the life of the assailant. That to justify this honest belief there must have been made by the deceased, immediately preceding the mortal blow, or the firing of the fatal shot, what the law calls an overt act. That the overt act is such a felonious assault, or hostile demonstration, as reasonably puts the person committing the homicide in honest fear of the immediate loss of life, or sufferance of great bodily harm. That the jury must find from all the facts and circumstances attending and surrounding the homicide whether or not, in any given case, there was such an overt act, or, in other words, whether there was actual or apparent immediate danger of loss of life or the sufferance of great bodily harm to the honest belief of the party committing the homicide.'

Bill No. 2 contains the following recital of part of the charge, as given by the judge, and of a special charge, requested by counsel for defendant, to the refusal of which the bill was reserved, to wit:

'That at the time of the killing, in order to make the same excusable homicide, in self-defense, there must have been, then and there, an overt act on the part of the deceased by some hostile manifestation on the part of the deceased of such a nature as would put defendant in fear and did put defendant in fear of loss of life or great bodily harm, and, unless such hostile motion or manifestation was then and there made on the part of the deceased towards the accused, there is no overt act, and defendant would not be justified in taking the life of the deceased.

'That this charge of the court was not excepted to by the defendant, but defendant, not thinking it sufficiently full and not sufficiently covering the law, with regard to overt acts, as applicable to the facts of this particular case, asked the following charge of the court, to wit:

'Gentlemen of the Jury: If you find that defendant's life had been threatened, and he severely beaten, and deceased, a short time afterwards, meets accused, without design, and deceased then asks a bystander for a pistol to kill a man, and the bystander is within a few feet of him, with a pistol in his right coat pocket, with his hand therein, and deceased, at the instant he asks for the pistol, stepped towards such person, there standing, with the apparent purpose of getting such pistol, and at this time the defendant came in the door of the boat, about 16 feet distant, that such request for a gun and effort to get it might amount to an overt act.'

The judge refers to the charge given by him as covering all that the case required upon the subject of 'an overt act.' We find no error in the rulings complained of in the two bills thus mentioned.

'It is not the duty of the court to state the law to the jury more than once, nor to state it in the identical language of a requested charge.' Knobloch's Cr. Dig. p. 96; 12 Cyc. 662, 665.

And:

'It is proper to refuse, and generally an error to give, an instruction which singles out or emphasizes particular parts of the evidence or gives undue prominence to isolated facts.' 12 Cyc. 649.

Bill No. 3, taken in connection with the statement per curiam, was reserved to the charge, given by the judge:

'That it was not necessary for the venue to be established beyond a reasonable doubt, but that all that was necessary was for them [the jury] to find, from a preponderance of the evidence, and to their satisfaction, that the crime charged was committed in the parish of Concordia, La.'

In considering this bill, it is proper to remark that we do not understand it to be questioned that the testimony, including that of the defendant, shows that defendant fired the shots whereby the decedent was killed, and that they were fired, and that the death occurred in Louisiana; the bill, therefore, presents the single question of law whether the venue, as between two parishes in this state, should have been established, by a preponderance of the evidence, to the satisfaction of the jury, or 'beyond a reasonable doubt.'

The homicide, it may be stated, occurred at night on a steamboat upon which defendant and decedent were passengers, and which proceeding up Black river, had reached a point where that stream serves as the boundary between the parishes of Concordia on the right, and Catahoula on the left; the line being the 'thread' of the stream midway between the banks at the ordinary stage of water without regard to the channel or the lowest and deepest part of the stream (State v. Burton and Jenkins, 106 La. 732, 31 So. 291), and the contention on the one side being that the...