State v. Leslie
| Decision Date | 28 January 1929 |
| Docket Number | 29682 |
| Citation | 167 La. 967,120 So. 614 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. LESLIE |
Appeal from Fourteenth Judicial District Court, Parish of Beauregard; Thos. F. Porter, Judge.
James Leslie was convicted of cutting with a dangerous weapon with intent to commit murder, and he appeals.
Affirmed.
E. L Stewart, of De Ridder, for appellant.
Percy Saint, Atty. Gen., John J. Robira, Dist. Atty., and S. H Jones, Asst. Dist. Atty., both of Lake Charles (E. R Schowalter, Asst. Atty. Gen., of counsel), for the State.
OPINION
This is an appeal from a sentence of 6 to 18 years in the penitentiary. The crime is cutting with a dangerous weapon with intent to commit murder.
The defendant relies on errors alleged to have been committed to his prejudice which are embraced in 14 bills of exception.
The crime charged against the defendant resulted from a general family row between the defendant on the one part and his sister and her son and son-in-law on the other. The fracas occurred on a public road near the defendant's house and some 200 yards from the house of the other participants.
As a sequence to the difficulty the defendant was indicted by the grand jury under the separate and distinct bills, first for assault and battery and assault with a dangerous weapon on his sister; second, with cutting with intent to murder the son of his sister; and, third, cutting with intent to murder the son-in-law of his sister.
The defendant was arraigned and put on trial for the last-mentioned charge, and after a jury had been selected and impaneled the district attorney moved to consolidate the case of assault and battery and assault with a dangerous weapon with the one on trial. The defendant objected to the consolidation for the reason that the defendant was on trial for an offense that would imprison him in the penitentiary or for a term in the parish jail, and the prosecution of the two cases at the same time would divert his (defendant's) attention and render him less able to defend himself in the case on trial before the jury.
The motion to consolidate was approved by the court for the reason that the misdemeanors grew out of and were a part of the res gestae of the cutting charge for which defendant was being tried. There were 36 witnesses in the case, and the court was of the opinion that it would be a useless waste of time to hear the same story from the same witnesses on three separate and distinct trials.
This ruling of the court forms the subject of the first bill.
If the consolidation of the misdemeanor cases with the felony case had been with the view and for the purpose of having all of the cases tried and determined by the jury, then the action of the court would have been manifestly illegal, and this for the simple reason that the felony charge was triable by a jury and the misdemeanor charge was triable by a judge. The misdemeanor charge was not included and could not have been included in the charge of cutting with intent to murder.
The assault and battery and assault with a dangerous weapon were upon a different person from the one the defendant was charged with cutting.
It is clear therefore that the several charges could not have been cumulated in one indictment and could not have been consolidated for the purpose of being tried and determined by the jury. We do not understand that this was the purpose of the consolidation. As a matter of fact, the misdemeanor charges were not submitted to the jury and were not considered by the jury. The jury alone tried the cutting charge, and it was on that charge alone that the jury rendered its verdict.
It is true evidence of the misdemeanor charge went to the jury, but that was unavoidable.
The several offenses grew out of the same difficulty and were so closely linked and connected as to form a single transaction.
A recital or story of the commission of the felony involved the recital or story of the misdemeanor and vice versa.
The two were inseparable.
It is a well-settled rule of law that a person may commit several separate and distinct crimes at the same time or in immediate connection and be indicted for each of said crimes. State v. Faulkner, 39 La.Ann. 811, 2 So. 539; State v. Montcrieffe, 165 La. 296, 298, 115 So. 493.
And whatever occurs at the time and place of the commission of the several crimes is admissible as res gestae in the trial for either of the concurrent crimes. State v. Corcoran, 38 La.Ann. 952; State v. Anderson, 45 La.Ann. 651, 653, 12 So. 737; State v. Vines, 34 La.Ann. 1079.
Where the commission of both offenses is closely linked or connected, evidence of the whole transaction is legal, although two distinct felonies have been committed. State v. Mulholland, 16 La.Ann. 376.
In the instant case, whether there had been a consolidation or not, all of the evidence of the assault and battery and of the assault with a dangerous weapon properly went to the jury as part of the res gestae. Indeed, there was no objection made, and none could have been legally made as appears from the authorities cited.
We are unable to perceive wherein the defendant has suffered any prejudice, or has in any manner been affected in his defense of the felony charge the only charge tried or that could have been tried by the jury selected.
And after all is said there was no consolidation in the legal sense in which the term is used. For, as already stated, the jury only tried the felony case and had nothing to do with the misdemeanor charges.
The trial and determination of the last-mentioned charges was left to the judge alone. In other words, while the jury was hearing the felony charge, the judge was hearing the evidence which involved the misdemeanor charges.
The method of procedure was for the convenience of the judge to avoid a multiplicity of trials before him upon the same evidence.
This was the full extent and full effect of the so-called consolidation.
In this proceeding the defendant was not affected or prejudiced in any of his constitutional or statutory rights, privileges, or immunities.
Bill No. 3 recites that Eugene Farris had testified that he was on the road to Sunday school at the time of the difficulty, when defendant sought by cross-examination to show that the difficulty occurred some three hours before Sunday school time, and hence to establish the fact that the witness was not going to Sunday school, but going to the home of the defendant to attack him.
The court says that the bill incorrectly states the purpose of the examination of the witness, and this appears to be true from the testimony attached to the bill.
The question asked and ruled out as immaterial was:
To which the witness answered, "Yes."
The court did not deny the defendant the right...
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...v. Cole, 161 La. 827, 109 So. 505; State v. Schmidt, 163 La. 512, 112 So. 400; State v. Norphlis, 165 La. 893, 116 So. 374; State v. Leslie, 167 La. 967, 120 So. 614; State v. Comeaux, 171 La. 327, 131 So. 36; State v. Jones, 174 La. 1074, 142 So. 693; State v. Bryan, 175 La. 422, 143 So. 3......
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...good faith and indicates his intention of abandoning the difficulty. State v. Stroud, 198 La. 841, 5 So.2d 125 (1941); State v. Leslie, 167 La. 967, 120 So. 614 (1929); La.R.S. 14:21. Where doubts exist as to whether the accused was an aggressor, the possibility of retreat is only one of ma......
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...good faith and indicates his intention of abandoning the difficulty. State v. Stroud, 198 La. 841, 5 So.2d 125 (1941); State v. Leslie, 167 La. 967, 120 So. 614 (1929); La.R.S. 14:21. Where doubts exist as to whether the accused was an aggressor, the possibility of retreat is only one of ma......