State v. Muse, 56129

• Court: Supreme Court of Louisiana
• Citation: 319 So.2d 920
• Docket Number: No. 56129,56129
• Parties: STATE of Louisiana v. Earl C. MUSE.
• Decision Date: 01 October 1975

Page 920

319 So.2d 920 STATE of Louisiana
v.
Earl C. MUSE. No. 56129. Supreme Court of Louisiana. Oct. 1, 1975.
Dissenting Opinion Oct. 14, 1975.
Rehearing Denied Oct. 31, 1975.

Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

In a bill of information Earl Muse was charged with committing a battery with a pistol upon Jerome Hamilton. He was found guilty and sentenced to serve four

Page 921

years at hard labor with credit for time served.

About six o'clock on the afternoon of April 12, 1975, Jerome Hamilton was watching a television news broadcast in a barber shop at the corner of Washington and Magnolia Streets in the city of New Orleans. Suddenly he heard a number of pistol shots being fired outside. As he walked to the door to investigate, he observed a Thunderbird automobile zigzagging down the street. Two people were seen firing pistols at the Thunderbird from across the street. Hamilton was then struck by a bullet below the eye and fell to the floor. He said he did not know either of the individuals who were firing at the Thunderbird, and knew no reason why the accused would shoot him.

Alfred Deleone, a state witness, testified that he and the defendant Earl Muse had a quarrel shortly before six o'clock on the afternoon of April 12. When he later drove past the corner of Washington and Magnolia Streets in his Thunderbird, Earl Muse fired six or seven shots at him with a pistol. At the time Muse was accompanied by another known to Deleone as 'Nuck'. Deleone stopped his car down the street and ran into his house for a pistol, while his assailants fled into Willow Street. As Deleone pursued them the police arrived at the scene, and Deleone in the ensuing confusion, attempted to dispose of the pistol he was carrying by giving it to a girl friend nearby. Deleone and Muse were arrested shortly thereafter.

At the trial, while Deleone was under cross-examination by the defense, the following colloquy occurred between Deleone and defense counsel.

'Q. How long have you known Jerome? (Jerome Hamilton the victim of the bullet wound.)

A. About twenty years.

Q. You see him a lot?

A. On occasion. I don't see him every day.

Q. Do you ever have occasion to talk to people in the community about Jerome? About his character?

A. No.

Q. You never talked to anybody about him?

A. No.

Q. Do you know Jerome's general reputation in the community?

BY MR. CHEN: (Assistant District Attorney) Objection, Your Honor.

BY THE COURT: I'll have to sustain the State's objection.

BY MR. VIOSCA (Defense Counsel) To which ruling we'd reserve a bill of exception.'

The trial judge assigns as reason for his ruling that Hamilton's general reputation in the nighborhood was strictly irrelevant and immaterial to the issue before the Court, and more particularly so since he was an innocent bystander. Alternatively, he asserts sustaining the State's objection was not prejudicial to the defense.

On this appeal defense counsel argues that it was error for the trial judge to restrict his effort on cross-examination to question the witness Deleone as to the character of Hamilton, a principal State witness; and that Hamilton's credibility was at issue and his character was being inquired into for the purpose of impeachment. To support this contention the defense relies upon Section 479 of Title 15 of the Revised Statutes 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.'

From these facts it was entirely conceivable that Jerome Hamilton saw the person who fired the shot which caused his wound. Conceivably it was the person accompanying the defendant Muse at the time

Page 922

of the shooting. All of which is of course speculation. It may have been that Hamilton desired to see Muse's companion acquitted, and would not contradict Deleone's testimony accusing Muse. An attack upon Hamilton's credibility may, perhaps, have mitigated the evidence pointing to the guilt of Muse. All of which is, of course, relative at this point. In any event, the defense was not permitted to cross-examine the State's witness to show Hamilton's bad character, or its effect upon his credibility, whatever the object of the cross-examination may have been.

In our view the question was proper and should have been allowed.

The proper question to be put to a witness for the purpose of impeaching the general character of another witness, as approved by this Court in State v. Christian, 44 La.Ann. 950, 11 So. 589 (1892), is whether he would believe him upon his oath. The regular mode is to inquire whether they have the means of knowing the former witness' general character, and whether, from such knowledge, they would believe him on his oath. The proper inquiry is, what is his general character for truth in the place where the resides? and whether, from the witness' knowledge of his general character, he would believe him under...