State v. McLaughlin

• Decision Date: 24 January 1916
• Docket Number: 21544
• Citation: 138 La. 958,70 So. 925
• Court: Louisiana Supreme Court
• Parties: STATE v. McLAUGHLIN

70 So. 925

138 La. 958

STATE v. McLAUGHLIN

No. 21544

Supreme Court of Louisiana

January 24, 1916

Rehearing Denied February 21, 1916

SYLLABUS

(Syllabus by the Court.)

In determining whether an exclamation or statement, made by a person who has received a mortal wound should be received in evidence, as part of the res gestae, against the slayer, on trial for murder, the question is not whether such exclamation, or statement, was made contemporaneously with the receipt of the wound, or 'immediately' before or after (which is much the same thing, since 'immediately' means, 'without interval of time'), but whether it was a spontaneous and unreasoned expression, superinduced by a state of mind created by the receipt of the wound, and continued from the moment of such creation to that of the utterance of the expression.

It is competent to show by a state witness what his movements were after his discovery, in the night, of an act of murder, in order, with other testimony, to establish the hour at which the act was committed.

Where an act of murder is committed in a house, at night, it is competent to show, in a prosecution of the husband of the victim, that, though separated from her at the time, he had formerly lived in the house with her, and was therefore familiar with the means of ingress and egress.

A person charged with murder, by cutting the throat, is denied no constitutional right in having the scrapings from beneath his finger nails, and his clothing taken, though against his will, with a view to their being tested for the presence of human blood.

A prosecuting officer is within his right in interpreting the facts disclosed by the evidence as pointing to, or establishing, another fact not otherwise established.

The question of the weight and sufficiency of the evidence is for the jury, and not the judge to decide; and, in a prosecution for murder, where the most important evidence is that establishing a verbal statement by the deceased as to the identity of the slayer, a requested charge, tending to discriminate against, or cast a doubt upon, the value of such testimony, is properly refused.

Though grand juries are required to be composed of 12 members, 9 members constitute a quorum and may find an indictment.

There is no law which requires that in the city of New Orleans tales jurors shall be drawn in open court; the drawing having been ordered, the sheriff may make it during the recess of the court.

The overruling of the state's objection to evidence in a criminal prosecution, where the accused has been convicted and the conviction is affirmed, can no longer affect the result, in the case before the court, and will not be reviewed merely to establish a precedent in a future case.

Henriques & Otero, of New Orleans, for appellant.

R. G Pleasant, Atty. Gen., Chandler C. Luzenberg, Dist. Atty., and B. J. Daly, Asst. Dist. Atty., both of New Orleans (G. A. Gondran, of New Orleans, of counsel), for the State.

OPINION

MONROE, C. J.

Defendant, having been convicted of the murder of his wife and sentenced to death, prosecutes this appeal.

A number of bills of exception were reserved, during the trial, and all of the testimony taken in the case appears to have been brought up in connection therewith.

1. The first bill to which our attention is called was reserved, by defendant's counsel, to the testimony of Mrs. Grace Cochran as to certain utterances of the decedent, after the infliction of the fatal wound. It appears that decedent and the witness were friends, and for about five months had been occupying, respectively, the upper front room and the adjoining, or second, room of a two-story tenement, the two first floor rooms of which were occupied by another tenant; that defendant had not lived with his wife during that period; that the two women returned together to their apartment about midnight and retired to their respective beds about 1 o'clock, the door between the two rooms being left open, and the decedent being in the act of kneeling by her bedside and saying her prayers when the witness last saw her; that, about half past 2 o'clock the witness was awakened by the decedent, standing, in her nightclothes, near the foot of her (the witness') bed, calling to her -- what she then said, as testified to by the witness, being the matter objected to, and, with some other testimony, given in the same connection, being as follows:

Examination in chief:

'Q. From her mother's home, where did you all go? A. We went straight home. Q. Now, what time did you go to bed, about? A. Around 12, or little after 12. Q. Were the doors open between your room and her room? (There appears to have been but one door.) A. Yes, sir. Q. Did you see Mrs. McLaughlin just before she went to bed? A. Yes, sir. * * * Q. What was she doing when you last saw her? A. Saying her prayers when I left her. Q. Now, then, did you go to sleep? A. Yes, sir; I went to sleep. Q. That was about what time? A. That was about -- we got home a little after 12 -- must have been close to 1 when we retired for the night. Q. * * * Now state how you woke up. A. I was awakened by Mrs. McLaughlin coming into the room.'

Counsel for defendant here announced that he intended to make an objection, and requested that the jury be retired; and it may be stated in this connection that the case was being tried for the second time, a prior conviction having been set aside upon the ground of newly discovered evidence. Hence the counsel and the court had reason to know what testimony to expect from the witness, who had testified on the first trial. The jury was accordingly retired; the witness was further examined, out of their presence; the judge ruled that the objection was not well taken; the testimony was repeated in the presence of the jury, and, so far as it need be here quoted, reads as follows:

'Q. Now, have you any idea how long you had been in bed, or how long you had been asleep, about, when you heard Mrs. McLaughlin? A. Must have been in bed an hour or two hours. (Elsewhere, she says about an hour and a half, which was probably correct.) Q. What was the first thing that attracted your attention -- what was the first thing that you noticed? A. Mrs. McLaughlin calling. * * * Q. What was the first thing you saw when you woke up? A. Mrs. McLaughlin standing in the middle of the room. * * * Q. In the middle of her room, or your room? A. In the middle of my room. Q. * * * What was she doing at that time? A. Standing there. I says, 'Mary, are you calling me?' She said: 'Yes, Gracie, scream!' And I says, 'Scream, Mary?' She said, 'Yes, scream! Gracie, scream! scream!' And, when I heard her say, 'Scream! Gracie,' the third time, I jumped out of the bed and seen her in the middle of the floor, covered with blood, and I said, 'My God! Mary; what is the matter -- what happened?' She said, 'George -- George.' I said, 'What George?' She said: 'George did it -- George did it -- George McLaughlin -- he cut my throat.' Q. What was her condition at that time, as to blood? A. The blood spurted out the throat like that; like you pull the faucet out of a cistern. * * * Q. When you first heard her scream and woke up -- the first time you saw her -- was she standing by your bed then? A. Yes, sir; right by the foot, between the bed and the table. * * * Q. What was the first thing that happened after she was standing there? A. After I grabbed her in my arms and put her in bed. Q. Before you grabbed her in your arms what happened? A. She told me who did it. Q. In what way did she tell you who did it; was she still talking clearly, or screaming, or what? A. Gasping. Q. What was the exact language she used when she told you that; what were her words? A. Her words was, 'Gracie, scream! scream! Gracie, scream!' When I heard her say 'Scream' the third time, I jumped out of the bed. When I saw her covered with blood, I said, 'My God, Mary, what's the matter?' She said, 'George did it.' I said, 'What George; what did he do?' She said: 'George did it -- George did it -- George McLaughlin -- he cut my throat.'

The following, with other matter, appears in the cross-examination:

'Q. And you went to bed about 1 o'clock? A. Yes, sir. Q. What time was it when you woke up and saw Mrs. McLaughlin in the middle of the room? A. Must have been about half past 2 -- around that. Q. Do you know when she was cut? A. No, sir; I don't know when she was cut. Q. Do you know how long after she was cut that you heard her screaming? A. No, sir. Q. Are you very deaf? A. Yes, sir. Q. Weren't you deaf at that time? A. I was deaf, but not as deaf as I am; could hear a great deal better than I do; I wasn't deaf then as I am now. Q. How far from the bed was she standing? A. As far as you are to me, by the foot of the bed. Q. How long had she been standing there; do you know? A. No, sir; I don't know. Q. And you don't know when she was cut or how she was cut? A. No, sir; I do not.'

The objection of the counsel which is here insisted on, and the reasons of the court for overruling the same, are stated as follows:

'Be it further remembered that, at the time the said witness was narrating what had taken place, and what statement had been made by the deceased, in order to lay the predicate for the admission of what was claimed to be the res gestae, the jury were retired; that the jury were returned into court, and counsel for defendant urged the objection that the statement made was not part of the res gestae; that it was not a part of the transaction; that it was not the transaction speaking by the distinctive words of the participants, or one of them; that the occurrence was over and for how long a time the witness did not know, nor was able to say; neither was it a dying declaration, because the...