State v. Pastor

• Decision Date: 18 January 1904
• Docket Number: 14,992
• Citation: 111 La. 717,35 So. 839
• Court: Louisiana Supreme Court
• Parties: STATE v. PASTOR et al

35 So. 839

111 La. 717

STATE v. PASTOR et al

No. 14,992

Supreme Court of Louisiana

January 18, 1904

Appeal from Criminal District Court, Parish of Orleans; Frank D Chretien, Judge.

Edward Pastor and Joseph O'Brien were found guilty of assault and robbery, and appeal. Affirmed.

Generelly & Doyle, for appellants.

Walter Guion, Atty. Gen., Chandler C. Luzenberg, Dist. Atty., and Samuel A. Montgomery, Asst. Dist. Atty., for the State.

OPINION

NICHOLLS, C.J.

Statement of the Case.

The defendants were found guilty of assault and robbery, and sentenced to imprisonment at hard labor in the State Penitentiary; Pastor for a period of three and O'Brien for a period of eight years. They appealed.

There are two bills of exception in the record. The first bill (evidently written up after the rendition of the verdict) was taken to the refusal of the court to charge the jury as to the various grades of larceny which might be rendered on the information. It recites that the court having charged that a verdict of larceny might be rendered on the information if it found that neither force nor violence had been used, counsel for defendants requested the trial judge to charge the jury that, if the amount stolen, taken, and carried away without putting the prosecuting witness in fear, and without the use of force, was less than $ 20 and more than $ 5 or less than $ 5, they might render a verdict of "Guilty of petit larceny of an amount more than five dollars or less than twenty dollars," or "Guilty of petit larceny of an amount less than five dollars." The court states that it refused to give this charge, and assigned as its reasons for refusal that it had already explained to the jury the law governing robbery, and had told them that robbery was a kind of larceny; that it was larceny from the person by using force or violence or by putting in fear; and that, if they found that neither force nor violence was used, and that the party was not put in fear, but that money had been taken from the defendant (prosecuting witness), in that case they could return a verdict of "Guilty of petit larceny."

The accused, through his counsel, then asked the court to charge as to the minor larcenies involving amounts less than $ 20. This the court refused to charge, because the evidence showed that $ 42 had been taken from the prosecuting witness, and nothing less than that, and the defendant was guilty of petit larceny of a sum over $ 20 or not at all. But, besides this, even if the court were wrong in its ruling, the accused suffered no injury, for he was found guilty of robbery, and not of petit larceny. Defendants' counsel excepted, attaching to their bill as part thereof the evidence taken on the trial. Defendants' counsel insist that there was testimony in the record going to show that they might have stolen less than $ 20. They say: The prosecuting witness, in answer to the question, "Did you have any money?" replied: "Yes, sir; they took about forty-two dollars. Then the policeman came." That one witness testified that the prosecuting witness was in his barroom at about eleven and a half o'clock on the night of the occurrence, and tried to borrow a dollar. The Police Officer Merritt, who made the arrest, testified that he had not lost sight of the accused from the time that they left the spot where the Chinaman (the prosecuting witness) was until their arrest, and that Police Corporal Burke testified that when they were taken to the police station after arrest, and searched, less than $ 1 was found in their possession.

The second bill of exception was taken to the refusal of the court to grant defendants a "new trial." The grounds assigned for a new trial were: First. That the verdict was contrary to the law and the evidence.

Second. That there was error to the prejudice of the accused in the refusal of the court to charge the jury as to the various grades of petty larceny.

Third. That since the trial of the case defendants had discovered new evidence, which if it had been submitted to the jury, would have caused said jury to return a verdict of not guilty as defendants verily believed, and that, although defendants had used due diligence, it was impossible for them to have discovered or produced said evidence on the trial, as was shown by the affidavits which were annexed to their bill and made part thereof. The court refused a new trial, and defendants excepted, making this motion for a new trial and the affidavits, bills of exceptions, a copy of the evidence taken on the trial, and the special charge requested by the defendants part of their bill, and annexing the same to it. The trial judge, in his addendum to this bill, stated that he attached as part thereof his reasons for denying the new trial thereof.

In these reasons the court stated:

"The second ground for a new trial was that there was error to the prejudice of the accused in his refusal to charge the jury as to the various grades of petty larceny, and that they could return a verdict of guilty of one of the lesser grades if, in their judgment, the evidence justified it. The court had already given its reason for the refusal to charge the jury as requested. There was no evidence to show that the prosecuting witness was robbed of any less sum than forty-two dollars.

"The accused claimed that he was entitled to the charge, because there was the testimony of a barkeeper to the effect that on that night at ten o'clock the prosecuting witness had borrowed from him one dollar. This was denied by the prosecuting witness, but, even if it were not denied, it did not show that this was all the money that the prosecuting witness had on his person. The money was charged to have been borrowed at ten o'clock at night, and the robbery took place at two o'clock in the morning; but as a matter of fact there was no evidence at all to show that the prosecuting witness had any money less than forty-two dollars, and that he was robbed of any less amount than forty dollars, and the court therefore would not have been justified in charging the jury upon larceny of a sum less than twenty dollars. But, even if the court had been in error in refusing the charge as requested, the accused suffered no injury, because they were not found guilty of larceny, but of robbery.

"The third ground upon which a motion for a new trial is asked is that new evidence had been discovered since the verdict, which tends to establish the innocence of the accused, and which, if it had been presented to the jury, would have had the effect of convincing the jury of the innocence of the accused. It is true that they allege that they did not know, and were unable to learn, of this evidence before the trial of the cause, and that they had used due diligence, and had made every effort to discover the evidence in their favor; but the court is not at all satisfied, if proper diligence had been used, that the newly discovered evidence could not have been found. The parties that are mentioned as the witnesses are:

"First. Mrs. T. Harang. She testified that she knew Pastor and O'Brien, and had known them for a great many years, they having lived in the same neighborhood for a long time, and she being on visiting terms with some of the friends and relatives of the accused.

"The other witness is one James J. Connell, who testified about to the same effect as the witness above named. He knows the accused, has known them for a long time, and says he knew of their arrest only after their conviction. This fact is the more remarkable because on the very day of the robbery the witness was in Bollick's restaurant when the policeman walked into the restaurant with the prosecuting witness for the purpose of having him to identify the guilty parties; and yet, notwithstanding this fact, and notwithstanding the fact that he knew...