State v. King

• Decision Date: 30 March 1914
• Docket Number: 20,422
• Citation: 135 La. 117,64 So. 1007
• Court: Louisiana Supreme Court
• Parties: STATE v. KING

64 So. 1007

135 La. 117

STATE v. KING

No. 20,422

Supreme Court of Louisiana

March 30, 1914

Rehearing Denied April 27, 1914

SYLLABUS

(Syllabus by the Court.)

The common-law rule, under which the trial judge, in charging the jury in a criminal case, is permitted to comment upon the facts and upon the weight of the testimony, has been abrogated in this state by constitutional and statutory enactments which command and require him, in the most imperative language, to charge the jury upon the law, to limit himself to that, and to abstain from stating the facts or from even recapitulating the evidence by which the facts are established, from which it follows, a fortiori, that he is required to abstain, and is prohibited from, assuming a fact, material to the result, and, upon the basis of such assumption, instructing the jury as to a particular effect which should be attributed to it.

At common law, which regulates criminal procedure in Louisiana, save where abrogated or modified, the right to determine the credibility of witnesses, testifying in a criminal prosecution, is within the province of the jury. Under the law of this state, the trial judge, in such case, is required to limit his instructions to the jury to matters of law, and is prohibited from trenching upon the facts or from expressing any opinion thereon. When, therefore, he designates a particular witness, whether it be the defendant or another, and instructs the jury that they should consider his interest in the case in determining his credibility, he instructs them to make use of a fact with which he is prohibited from dealing, in order to determine a question which, of itself, is entirely within the province of the jury; and there is error in the charge.

Where it appears from a bill of exception reserved upon the trial of a prosecution for murder, in which there was a conviction without capital punishment, that the defendant testified 'that he had no trouble with the deceased, and that he was drunk and just fired his pistol and killed the deceased,' and further appears that all the other evidence bore out that statement, the defendant shows no injury, and is entitled to no relief, in this court, because the judge charged the jury that he was a competent witness, but that they should take into consideration the interest that he and the other witnesses had in the case, in determining as to their credibility, since it is plain from the verdict that the jury must have accepted his testimony, and have given to it the most favorable effect to which it was entitled, and hence that his credibility was not affected by the instruction of which he complains.

W. H. Todd, of Bastrop, for appellant.

R. G. Pleasant, Atty. Gen., Frank M. Odom, Dist. Atty., of Bastrop, and G. A. Gondran, of New Orleans, for the State.

LAND, J., concurs in the decree.

OPINION

MONROE, J.

Defendant, having been prosecuted for murder and convicted 'without capital punishment,' prosecutes this appeal, and presents his case upon the following bill of exception, to wit:

'Be it remembered that, on the trial of this case, the accused having taken the witness stand and testified that he had no trouble with the deceased, and that he was drunk and just fired his pistol and killed the deceased, and all of the evidence having borne out this statement, the trial judge, in his charge to the jury, charged them that an accused was a competent witness in his own behalf, but that the jury should take into consideration the interest the accused, as well as the other witnesses, had in the case. To which ruling counsel for defendant excepts, for the reason that * * * the court did usurp the authority of the jury by commenting on the evidence of the accused.'

The common law rule, under which the trial judge, in charging the jury in a criminal case, is permitted to comment upon the facts and upon the weight of the testimony, has been abrogated in this state by the following constitutional and statutory enactments, viz.:

'The jury in all criminal cases shall be the judges of the law and of the facts on the question of the guilt or innocence [of the accused], having been charged as to the law applicable to the case by the presiding judge.' Const. art. 179.

'In charging the jury in criminal cases, the judge must limit himself to giving them a knowledge of the law applicable to the case. In doing so, he shall abstain from stating or recapitulating the evidence so as to influence their decision on the facts. He shall not state or repeat to the jury the testimony of any witness; nor shall be give any opinion as to what facts have been proved or disproved.' R. S. § 991.

'The circumstances of the witness being a party accused, or being jointly tried, shall in no wise disqualify him from testifying; that no one shall be compelled to give evidence against himself; and provided that if the person accused avails himself of this privilege, he shall be subject to all the rules that apply to other witnesses, and may be cross-examined as to all matters concerning which he gives his testimony; and provided further that his failure to testify shall not be construed for or against him, but all testimony shall be weighed and considered according to the general rules of evidence, and the trial judge shall so charge the jury.' Act No. 41 of 1904, § 2.

In those jurisdictions where the common-law rule above referred to has neither been abrogated nor modified, the jurisprudence sustains the proposition, that the trial judge, in a criminal case, may instruct the jury in the language of the charge here complained of; but where, as in this instance, the common-law rule has been superseded, by a rule founded in constitutional and statutory enactments, it would appear that there should be, and for the most part there has been, a corresponding change in the jurisprudence.

In the exhaustive annotation of the case of State v. Bartlett, 50 Or. 440, 93 P. 243, 19 L. R. A. (N. S.) 802, 126 Am. St. Rep. 751, the 'Introductory' opens as follows, to wit:

'The right to determine the credibility of witnesses testifying in an action has been immemorially within the province of the jury. This right includes the parties to the cause as well as the witnesses generally. * * * A charge to the jury is perfectly unexceptionable only when the judge confines himself to the duty of setting forth the law applicable to the case, without either expressing or intimating any opinion as to the credibility of statements made by the party accused or by the witnesses. The court should not instruct the jury to give full credit to the testimony of the accused, nor generally as to the credence or weight to be given to his testimony. But the court may, in the absence of a statute forbidding it, direct the jury as to matters which they may consider in determining the credibility of the accused, such as his good character, the reasonableness or unreasonableness of his account of the transaction, the probability or consistency of his testimony, and his intelligence or want of intelligence. Nor does the rule against singling out a particular witness and charging the jury as to his credibility preclude the court from referring in an appropriate way to the weight to be given to the testimony of the accused. * * * The jury may properly be authorized to consider the interest the accused has in the result of their verdict, as affecting his credibility, but the court should refrain from suggesting the degree of weight to be given to that fact. While the court may suggest to the jury that the interest of the accused may color his testimony, yet the charge should not be of such a nature as to disparage his evidence. The jury should not be told that the prisoner's interest tends to discredit his testimony, nor should the court place such stress upon the fact of his interest as would discredit his evidence in advance. It is improper to charge the jury to scrutinize the evidence of the accused with great caution; and a charge that the jury may disregard the testimony of the accused on account of his interest is prejudicial, but an instruction that the jury are not required blindly to receive the testimony of the accused as true is not regarded as prejudicial, especially when coupled with a further statement that they are not to disregard his testimony, but must give it due consideration. It is generally proper to instruct the jury to treat the testimony of the accused the same as that of other witnesses, bearing in mind, however, his interest in the result, since he does not stand in the position of a disinterested witness. Instructions referring to the interest of the accused usually have been upheld against an objection that his testimony is thereby prejudicially singled out, although sometimes considered ill-advised, and in one jurisdiction declared to be invasive of the province of the jury. A general instruction upon the fact of interest, applicable to all witnesses obviously is unobjectionable.'

The various propositions, as thus stated, are amply sustained by the jurisprudence predicated upon the common law, but it is obvious that they have no application in cases to which the common law does not apply, and particularly to those to which the application of the common-law rule upon the particular question at issue is prohibited, for, it will be observed that the author of the annotation, in the beginning of his statement of what the court may do says: 'But the court may, in the absence of a statute prohibiting it, direct,' etc. It is equally obvious as it appears to us, that the propositions stated are inconsistent with each other and with the main proposition that 'the right to determine the credibility of witnesses testifying in an action has been...