State v. Louviere

• Decision Date: 13 February 1928
• Docket Number: 29017
• Citation: 165 La. 718,115 So. 914
• Court: Louisiana Supreme Court
• Parties: STATE v. LOUVIERE

115 So. 914

165 La. 718

STATE v. LOUVIERE

No. 29017

Supreme Court of Louisiana

February 13, 1928

Rehearing Denied March 12, 1928

Appeal from Twenty-Fourth Judicial District Court, Parish of St Charles; L. Robert Rivarde, Judge.

Ernest Louviere was convicted of murder, and he appeals.

Verdict and sentence annulled, and case remanded for new trial.

Robert J. Perkins, of New Orleans, for appellant.

Percy Saint, Atty. Gen., E. R. Schowalter, Asst. Atty. Gen., and John E. Fleury, Dist. Atty., of Gretna (J. K. Gaudet, of Gretna, of counsel), for the State.

OPINION

ST. PAUL, J.

The appellant was convicted of murder without capital punishment. His appeal presents a number of bills of exception.

I.

He moved to quash the indictment on the ground that during the taking of testimony before the grand jury a stenographer was present to take down same in writing. This stenographer left the grand jury room with the district attorney after the testimony had been heard, and was not present during the deliberations of the grand jury. We are of opinion that the mere presence in the grand jury room of a stenographer, who confined himself to the taking down of the testimony of the witnesses in the presence of the grand jury and district attorney, and retired with the district attorney before the grand jury began its deliberations, was no more prejudicial to the accused than if that same testimony had been recorded on a phonograph or other mechanical device; and, surely, that would not prejudice the accused or suffice to vitiate the finding of the grand jury. State v. Watson, 34 La.Ann. 669, is based upon the theory that the appointment of a "clerk" to the grand jury, unauthorized by law, was the introduction of an outsider into the deliberations of the grand jury, since such person might come and go at his will, "virtually as one of themselves." The present case stands on an entirely different basis; the stenographer was there merely to record the testimony taken in the presence of the district attorney, to the end of preserving the same; and his presence was no more prejudicial to the accused than the presence of an interpreter would have been. Cf. State v. Firmatura, 121 La. 676, 46 So. 691. The motion to quash was properly overruled.

II.

The trial judge properly refused a continuance for the purpose of considering a motion for change of venue, because (1) it was a matter within his discretion, (2) the application for change of venue did not contain an affidavit that it had been made as soon as it could be discovered that prejudice existed against the accused, and (3) because the event shows that the application was frivolous, since a jury was readily chosen without the accused having exhausted his peremptory challenges. Rev. St. 1870, § 1022.

III.

Bill No. 7 is well founded. Wylie Champagne, a son of the deceased, was asked to repeat a discussion between the deceased and the accused, which immediately preceded the killing. He admitted that he had not heard (or understood) the whole conversation. The state objected to his relating that part of the discussion which he had heard (and understood); and the objection was sustained.

Of course, this discussion, as part of the res gestae and as showing the circumstances under which the killing occurred, was highly important to the accused, even if it served only to show that the killing occurred in the heat of passion.

The ruling was erroneous. "A witness need not have heard the entire conversation, but may testify to the part he has heard." State v. Freddy, 117 La. 121, 41 So. 436, 116 Am. St. Rep. 195, and authorities cited; State v. Foster, 153 La. 154, 95 So. 536, and authorities.

IV.

The other bills of exception No. 5 and 6, and Nos. 8 to...