State v. Leahy
| Citation | 175 La. 659,144 So. 138 |
| Decision Date | 20 July 1932 |
| Docket Number | 31869 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. LEAHY |
Rehearing Denied October 31, 1932
Finnorn & Todd, John J. Finnorn, and Robert B. Todd, all New Orleans for appellant.
Gaston L. Porterie, Atty. Gen., and Eugene Stanley, Dist. Atty., and George J. Gulotta, Asst. Dist. Atty., both of New Orleans for the State.
ROGERS J., dissents and hands down reasons.OVERTON, J., concurs in dissenting opinion of Justice ROGERS.BRUNOT, J., dissents from ruling of bill No. 2.
Defendant, as agent and employee of the city of New Orleans, and while serving as the secretary of the commissioner of public finance of that city, is charged with the embezzlement of forty-six coupons of the Lafayette Securities Company, Inc., of the value of $ 1,495, intrusted to his keeping by his employer, the city of New Orleans.
Defendant was convicted of embezzlement and sentenced to serve not less than two nor more than four years at hard labor in the State Penitentiary and, on appeal, presents for the consideration of this court four bills of exception.
Defendant was tried on March 31, 1932. On that day, before the jury was impaneled, he filed a motion for a continuance for one week on the ground that he has had insufficient time to employ counsel and to allow his counsel to become familiar with all the facts of his case, which defendant averred was complicated and involved a number of records, documents, and witness who could not be easily reached.
In the per curiam to this bill, the trial judge states:
'Defendant's motion for a continuance shows that he did, on March 22, 1932, receive a notice that his trial was fixed for the 31st day of March, 1932, which was nine days before the actual trial.
'The attorney for the defendant, Mr. Todd, stated that he was employed on March 23rd or 24th, which gave counsel seven or eight days in which to prepare a defense.
'This case was not 'a complicated one involving a number of records, documents and witnesses who could not be easily reached.' The defense was solely that the defendant had received the coupons named in the Bill of Information from the Commissioner of Public Finance of the City of New Orleans, and that he laid them on his, the defendant's desk, and that some one had stolen them.
'Therefore, it can readily be seen that no records or documents or witnesses were necessary to prove this, as the defendant could be and was the only witness that testified that the coupons had been stolen.'
The granting of a continuance rests largely within the discretion of the trial judge, and his refusal to grant a continuance should not be interfered with, except when it appears that he has abused the discretion vested in him, and no abuse of his discretion appears in the present case. State v. White, 156 La. 784, 101 So. 136; State v. Dwyer, 159 La. 399, 105 So. 410; State v. Williams, 162 La. 590, 110 So. 766; State v. Scruggs, 165 La. 842, 116 So. 206; State v. Taylor, 167 La. 1113, 120 So. 875.
This bill reads as follows:
'The witness stated positively that the defendant's instructions were to transmit the coupons without delay to the City Treasurer.
'During the course of his examination, the witness was asked by counsel for the defense whether or not be felt any hostility toward the defendant, whereupon the witness answered:
'Thereupon the following further proceedings were had:
'By Counsel for Defendant: 'Mr. Pratt, do you know or have you learned since this came up, or have you been told that Mr. Leahy furnished information to the District Attorney about the Trust Funds that provoked the investigation of your office?'
'By the Court: 'That is clearly hearsay, I don't think you have the right to ask Mr. Pratt what has been told.'
'By Counsel for Defendant: 'The purpose is to show bias.'
'By the Court: 'I think the question is whether he is hostile to the witness or not; what he has been told is hearsay evidence.'
The per curiam to this bill states:
'The Court told Counsel for the Defendant that if Counsel for the Defendant wanted to show bias, prejudice or hostility on the part of the witness Mr. Pratt, towards the defendant, the Court would permit Mr. Pratt to be interrogated at full length on this point, and that Counsel for the Defendant could show, by legal evidence, any bias, prejudice or hostility which it was alleged Mr. Pratt entertained towards the defendant.
'The question asked the witness shows, on its face, that the witness was being asked about matters which were purely hearsay.
'The Court's ruling denied the defendant the right to interrogate the witness as to matters which were purely hearsay in character, but the Court at no time denied the defendant the right to show hostility, bias or prejudice, by legal evidence; the examination of Mr. Pratt will show that Mr. Pratt was specifically asked whether or not he had nay prejudice, hostility or bias against the defendant, and that Mr. Pratt answered in the negative.
'No attempt was made to contradict Mr. Pratt's statement that he had no bias, hostility or prejudice towards the defendant, by evidence which would show, or tend to show, that Mr. Pratt had expressed bias, hostility or prejudice towards the defendant in any manner, shape or form.'
The trial judge, having held, in the presence of the jury, that the prosecuting witness had denied that he had any prejudice, hostility, or bias against the accused, counsel for defense clearly had the right to continue to question the state witness, and bring out, by further cross-examination, circumstances showing that he was hostile.
This court had held repeatedly that: 'It is always competent in a criminal...
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... ... Jack, ... 139 La. 885, 72 So. 429; State v. White, 156 La ... 770, 101 So. 136; State v. Dwyer, 159 La. 399, 105 ... So. 410; State v. Flores, 169 La. 22, 124 So. 132; ... State v. Schemp, 172 La. 72, 133 So. 367; State ... v. Taylor, 173 La. 1010, 139 So. 463; State v ... Leahy, 175 La. 659, 144 So. 138; State v ... Florane, 179 La. 453, 154 So. 417. No such abuse of ... discretion appears here ... The ... continuance was applied for on the ground that the defendant ... had a defense to offer which would exonerate him from the ... charge, and that the ... ...
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