State v. Kinchen

• Court: Louisiana Supreme Court
• Writing for the Court: PROVOSTY, J.
• Citation: State v. Kinchen, 126 La. 39, 52 So. 185 (La. 1910)
• Decision Date: 28 March 1910
• Docket Number: 18,047
• Parties: STATE v. KINCHEN

52 So. 185

126 La. 39

STATE v. KINCHEN

No. 18,047

Supreme Court of Louisiana

March 28, 1910

On Application for Rehearing, April 25, 1910. Rehearing Refused.

Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.

Ben Kinchen appeals from a conviction. Reversed and remanded.

W. B Kemp, Thomas P. Sims, Alonzo P. Gill, and Chandler C Luzenberg, for appellant.

Walter Guion, Atty. Gen., W. H. McClendon, Dist. Atty., and Morphy &amp Miller (R. G. Pleasant, of counsel), for the State.

PROVOSTY J. MONROE, J. concurs in the decree, but dissents from the views expressed in the opinion on the last bill considered.

OPINION

PROVOSTY, J.

The defendant, Ben Kinchen, was indicted, tried, and convicted on the charge of having been an accessory before the fact to the murder of John O. Breland by Garfield Kinchen and Avery Blount.

Section 785, Rev. St., provides that:

"There shall be no crime known under the name of murder in the second degree, but on trials for murder the jury may find the prisoner guilty of manslaughter."

And section 972, Rev. St., provides that the punishment of the accessory shall be the same as that of the principal.

In State v. Thomas, 50 La.Ann. 148, 23 So. 250, and other cases it was held by this court that the judge must in all cases of murder, even in the absence of any request to that effect from the defendant, charge the jury that they may bring in a verdict of manslaughter.

In the instant case the defendant contends that this charge should have been given, even though no request was made for it, because the punishment of murder and of accessory before the fact is the same, and hence the two crimes are the same, and, as a consequence, the same charge should be given upon the trial for both.

We do not agree with that view. The Legislature has had no intention by section 785 to obliterate the distinction between murder and manslaughter; but simply to classify with manslaughter the crime known at common law as murder in the second degree. The manifest intention was to say that in all those cases of murder which at common law would have been murder in the second degree -- i. e., cases of merely imputed malice -- the jury may find the prisoner guilty of manslaughter. If the intention had been to obliterate the well-recognized distinction between murder and manslaughter, the several statutes recognizing the two crimes as distinct and different, and denouncing a widely different punishment for them, would have been taken off of the statute book. To the legal mind, the distinction between willful murder, or murder in the first degree, and manslaughter, is as clear and broad as between murder and larceny; and, to the legal mind, to say that in a case of assassination the jury may find manslaughter is as contradictory and absurd as to say that in a case of murder the jury may find larceny. The statute does, however, in explicit terms say that on trials for murder the jury may find manslaughter; and the courts have had no choice but to apply the statute as it is written. In like manner, if a statute said that on trials for murder the jury might find larceny, the court would have no choice but to enforce the statute as written. But the courts are not required to carry the statute beyond its terms, and, not content with advising juries that they may stultify themselves to the extent of finding manslaughter in a case where the facts are contradictory of manslaughter, go on a step further and advise them, beyond the express terms of the statute, that they may stultify themselves even to a greater extent by finding for manslaughter in a case of accessory before the fact. A charge of murder may, in a sense, be said to include that of manslaughter, on the principle of the greater including the less; but a charge of accessory before the fact not only does not include that of manslaughter, but is in principle exclusive of it. "There cannot be an accessory before the fact to manslaughter, for the offense, in its nature, cannot be premeditated." 1 Hale, 615; Archbold's Crim. Proc. and Pl. (Waterman's Notes, 6th Ed.) vol. 1, p. 14. We conclude that the judge properly abstained from giving the charge.

Defendant's next contention is that, inasmuch as the only acts of counseling and procurement sought to be proved against him are said by the only witness who testified to them to have been committed in the parish of St. Helena, the court of that parish alone had jurisdiction of his case. The judge says, in his per curiam, that as the defendant was seen in the company of the murderers near the scene of the crime within one hour of its commission, the question of whether there had been any counseling and procuring by the defendant within the parish of Tangipahoa was left to the jury. This was the proper course if the jury were at the same time informed that in case they found no acts of counseling and procurement to have been committed within the parish of Tangipahoa, but did find that such acts had been committed in another parish, they should so report and abstain from finding any verdict. The record does not show that any instructions were given in that connection. As there will have to be another trial, we will add that the contention that an accessory before the fact cannot be tried in a parish other than that in which the acts of counseling and procuring were done, is well founded. To that effect was the common law. 1 Whart. Crim. Law, par. 287; 1 Am. & Eng. E. of L. 271; State v. Moore, 26 N.H. 448, 59 Am. Dec. 354. True, the courts have held that the common law was changed in that respect by statute (7 Geo. IV, c. 64, § 9), adopted in this country by most of the states, including Louisiana (section 1058, Rev. St.; Arch. Crim. Proc. and Pl. [Waterman's Notes, 6th Ed.] p. 15; 12 Cyc. 238); but that statute stands in opposition to article 9 of the Constitution of this state, according to which "Trials shall take place in the parish in which the offense was committed." It can therefore have no operation. For the same reason the statute which gives jurisdiction over crimes committed within 100 yards of the boundary of the parish for which the trial court is sitting has been held to be null. State v. Montgomery, 115 La. 155, 38 So. 949. It is well settled that the situs of the crime of accessory before the fact is the place where the acts of counseling and procuring were done. 12 Cyc. 208.

Bill of exception No. 21, reads:

"Be it known and remembered that, on the trial of the above case the state had introduced one Walter Averett, who had testified that, on the night before the killing of the deceased, about dark, he had heard the defendant at the Little River depot say to and urge one Avery Blount and Garfield Kinchen to murder the deceased (and this was the only witness who testified to anything said by the defendant that might be construed as counseling or consenting to the murder of the deceased).

"Now, be it remembered that, on behalf of the defendant, a witness, Elmour Stewart, did testify, and the wife of the said witness, Mrs. Elmour Stewart, did testify, that at the time (about dark) the said witness Walter Averett had sworn he heard the defendant urge and counsel Avery Blount and Garfield Kinchen to kill and murder the deceased, the said Walter Averett was not at the place -- i. e., the Little River depot -- where he claimed to have heard the defendant so urge the death of the deceased, but he, the said Walter Averett, was at his (Walter Averett's) house, at least a mile distant from the said depot; that they reached the said house a little after sundown, about dark; that Walter Averett was there when they arrived; that they remained until half past 9 or 10 o'clock; that Walter Averett was there all the time they were there.

"And be it further remembered, that, after the defendant had closed his case, the state offered in rebuttal the witness Rob Rogers, who had not previously testified in the case, and who testified that, on the day in question (after sundown), he, the witness, was with Elmour Stewart at least half a mile from Walter Averett's house; that, when Elmour Stewart left him, it was too dark for him (Rogers) to see to load his wagon; that Elmour Stewart left walking and had no horse.

"And be it remembered that, for the purpose of impeaching this witness, counsel for the defendant asked this witness on cross-examination if the witness had not stated the evening before he testified, in a conversation with the defendant Kinchen, in the presence of W. B. Kemp and T. P. Sims at the parish jail, that he (the witness) did not know why he had been summoned; that it was about Elmour Stewart, but that Elmour Stewart left him (the witness) in plenty time to reach Walter Averett's house before sundown. And the witness answered 'No' to the question, and denied he had ever made such a statement.

"Now, be it further remembered, that, after the state had closed its case, the defendant, through his counsel, offered to contradict this witness Rob Rogers, and tendered W. B. Kemp and T. P. Sims as witnesses to that effect, and to testify that Rogers did make the statement at the time and place set forth in the question -- that he did not know why he had been summoned, that it was about Elmour Stewart, but that Elmour Stewart left him in plenty of time to reach Walter Averett's house before sundown. And the court refused to admit this testimony and to permit the witness for the defendant to be sworn.

"And the defendant makes the stenographic notes taken at the time, and the reasons of the court contained in said notes, a part of this bill.

"And after tendering this bill to...