State v. McMillian

• Decision Date: 23 March 1953
• Docket Number: No. 41139,41139
• Citation: 223 La. 96,64 So.2d 856
• Parties: STATE v. McMILLIAN.
• Court: Louisiana Supreme Court

Page 856

64 So.2d 856

223 La. 96

STATE v. McMILLIAN.

No. 41139.

Supreme Court of Louisiana.

March 23, 1953.

Rehearing Denied April 27, 1953.

Warren Hunt, Rayville, for appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Ass't. Atty. Gen., and Fred Fudickar, Jr., Dist. Atty., Monroe, for appellee.

HAWTHORNE, Justice.

Appellant, Mrs. Acle McMillian, was indicted for the murder of her husband, Dudley McMillian, tried, found guilty of manslaughter, and sentenced to 15 years at hard labor in the state penitentiary. From this conviction and sentence she has appealed.

The homicide was admitted, but the accused pleaded self-defense. Defendant relies on 11 bills of exception reserved and perfected. All of these bills are closely related, particularly Bills Nos. 1, 2, 4, 5, and 10. Each of the enumerated bills was reserved to the ruling of the court sustaining the State's objection to a question asked a defense witness which would have elicited evidence of previous difficulties or altercations between the deceased and the accused. For example, the question involved in Bill No. 5 was: 'Have you seen Mr. McMillian while he was drunk physically beating Mrs. McMillian?' The defense had introduced evidence that the deceased was intoxicated at the time of the homicide, and by the questions presented by these bills was attempting to show that the deceased had brutally mistreated defendant and inflicted great bodily harm on her on previous occasions when he was intoxicated.

We are informed by counsel for the State that the trial judge based his rulings on Article 479 of the Code of Criminal Procedure, LSA-R.S. 15:479, which provides that character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him, and counsel contends that under the provisions of this article and the jurisprudence of this state evidence of specific acts or of prior altercations between the deceased and the accused is not admissible to show the character of the deceased.

In the instant case it is conceded that there was evidence of hostile demonstration and of an overt act on the part of the deceased, and the State admits that under the provisions of Article 482 of the Code of Criminal Procedure, LSA-R.S. 15:482, as amended by Act 239 of 1952, evidence of the deceased's dangerous character or of threats made by him against the accused was admissible. It is contended by the State, however, that evidence to establish bad character must be confined to general reputation and cannot include specific acts.

The State is correct that it is well settled under the law that evidence or proof of specific acts or details of prior difficulties cannot be adduced to show the dangerous character of a deceased. The evidence sought to be elicited here, however, would have served a different purpose from merely showing the dangerous character of the deceased, for under the plea of self-defense such evidence was admissible and relevant to show the reasonableness of the defendant's fear of an impending attack or of suffering great bodily harm at the time of the homicide. It would have tended to negative intent and was thus relevant and admissible under Article 441 of the Code of Criminal Procedure, which provides: 'Relevant evidence is that tending * * * to...