State v. Reeves

• Decision Date: 13 November 1911
• Docket Number: 19,021
• Citation: 56 So. 648,129 La. 714
• Court: Louisiana Supreme Court
• Parties: STATE v. REEVES

56 So. 648

129 La. 714

STATE v. REEVES

No. 19,021

Supreme Court of Louisiana

November 13, 1911

Rehearing Denied December 11, 1911.

Appeal from Thirteenth Judicial District Court, Parish of Rapides W. F. Blackman, Judge.

Augustus Reeves was convicted of assault with intent to kill, and appeals. Affirmed.

Hunter & Hunter and Blackman & Overton, for appellant.

Walter Guion, Atty. Gen., and John R. Hunter, Dist. Atty. (G. A Gondran, of counsel), for the State.

BREAUX C.J. PROVOSTY, J., concurs.

OPINION

BREAUX, C.J.

The grand jury of the parish of Rapides found a true bill against the defendant on the 25th day of April, 1910, charging him with having feloniously shot and wounded with a dangerous weapon on the 2d day of the same month and year one Joe R. Ball, with the felonious intent of killing and murdering him.

He was placed on trial on the 27th day of June, 1911.

On the 29th day of that month the jury found him guilty, and on the 7th of July following the court sentenced the accused to be confined at hard labor in the state penitentiary during six years and four months.

From this sentence he appealed.

The questions for decision are before us as set forth in a number of bills of exceptions.

First Bill of Exceptions.

In overruling the motion for a new trial, the presiding judge stated that, according to his recollection of the evidence on the former trial (this case had been previously tried, and on appeal to this court it was remanded; see same title, 128 La. 37, 54 So. 415) three of the witnesses, naming them, had testified to the facts that the defendant intended to prove by the absent witness, and for that reason he overruled the motion.

The presence of a witness residing in Rapides not far from the courthouse, who was at the time temporarily in Alabama, it was stated, in the motion for a continuance, would, if the continuance were granted and his presence obtained, enable the defendant to prove on the trial that Ball, the one who was shot and wounded, had admitted to him (the absent witness) that:

"In the first meeting in the woods, when Ball cursed and abused him, defendant, until he (Reeves) had begged and cried 'like a whipped child' that he, Ball, had also rubbed his gun in his face."

The judge at some length has given his reasons for refusing to grant a new trial. He recapitulates the evidence as testified to on the trial, and positively states, at the end of the summary of the evidence, that the prosecuting witness, Ball, was not the aggressor; that there was not the least necessity to shoot and attempt to kill under the law of self-defense.

In the motion for a continuance, with reference to this absent witness (G. W. McClanny, on account of whose absence defendant had asked for a continuance at the time that the case was called for trial), defendant avers that, if the case had been continued or reassigned for 10 days, he would have secured his presence, and that this witness would have contradicted the prosecuting witness Ball, and would have proven that Ball had made a deadly assault with a gun on the defendant on a prior occasion, and that this witness would have corroborated the accused.

In important particulars the court's per curiam did not agree with the affidavit of the accused. The judge was not only convinced that the accused was the aggressor. His conviction, as expressed, goes further, and leads to the conclusion that he was equally as convinced that the case had been fully and fairly tried, and that the testimony of the absent witness would only have been cumulative. What else can be inferred from the following part of the per curiam?

"The witnesses Murray, Stiley, and Poest had substantially testified to the same facts on a former trial and were present in court as witnesses."

And the fact had led the learned judge to conclude that the testimony of the absent witness would have been at most cumulative.

But this is not the only ground for refusing the continuance.

There is an affidavit of record in which a witness contradicts his own daughter, the wife of the absent witness, regarding the date of the return of the witness to this state.

This witness is very confident. At the same time he also swears that his son-in-law, the absent witness, some three months ago obtained a contract of employment in Wilcox county, Ala., where he is now working, and that his absence is temporary.

The foregoing statement does not create the impression that the witness is a mere sojourner in Alabama -- one who expects to return in the near future. The wife of the absent witness declared to the sheriff that he would not return before about the end of the year.

We have noted that the case was tried in June. If it was as stated by the wife, there was no good reason to expect that the witness would return within a reasonable time for the trial.

We do not attach the greatest importance to this return based upon the statement of the wife. None the less, it shows that those who were in a position to know did not think that there would be an early return of the witness. That was the opinion of the district court. We have no reason to think that it is not correct.

Moreover, the state's position is that there was want of diligence on the part of the accused; that, although he had ample time from the date the case was assigned for trial to the day of trial to obtain the names of his witnesses, he did not timely and correctly give the name of this witness to the sheriff.

We are informed by the trial judge that this witness was not summoned as a witness in the first trial at all, and we are not of opinion that new and material evidence was expected that could not be proven by other witnesses.

As relates to the requirement of a defendant in this respect, the decision in State v. Spooner, 41 La.Ann. 783, 6 So. 879, is cited, in which it was held that an accused is not entitled to relief if he is not diligent in matter of notice to the sheriff about subpoena to be served on witnesses.

Another decision cited is State v. Pruett, 49 La.Ann. 297, 21 So. 842.

In a similar case the continuance was refused in State v. Nash and Barnett, 45 La.Ann. 1139, 13 So. 732, 734, and the court's ruling was maintained on appeal.

Further, still, the position on the part of the state is that the testimony is not material, and that is the unavoidable inference after reading the different statements of the presiding judge.

Again, it is stated on the part of the state that jurisprudence does not give sanction to delays where the witness wanted was out of the state, and not reachable by any process, and State v. Nicholson, 14 La.Ann. 785, State v. Duffy, 39 La.Ann. 419, 2 So. 184, State v. Primeaux, 39 La.Ann. 673, 2 So. 423, State v. Nash, 45 La.Ann. 1139, 13 So. 732, 734, and State v. Pruett, 49 La.Ann. 297, 21 So. 842, are cited.

The defense confidently cites State v. Mills, 123 La. 781, 49 So. 523, as being absolutely controlling.

We do not yield to that length to the force of that decision. The facts were different.

In the cited case the judge had not stated in what respect there was want of diligence. Here the facts and circumstances under the eye of the court led the court to the conclusion that there was want of diligence. In this it does not appear that he erred.

And lastly upon this point, motion for continuance.

Motion for continuance, when refused, will not be interfered with except in a clear case of abuse. State v. Murray, 111 La. 688, 35 So. 814.

It will not be reversed unless arbitrary and prejudicial. State v. Satcher, 124 La. 1015, 50 So. 835.

See, also, State v. Clay, 121 La. 530, 46 So. 616; State v. Pointdexter, 117 La. 380, 386, 41 So. 688.

Bill of Exceptions No. 2.

This bill was very similar to No. 1. The defendant before trial moved to have the case assigned for another day of the term.

The judge in his per curiam states that there was no occasion for reassigning the case; that the reassignment would have been in effect a continuance, as the court's adjournment for the term was to be in a few days; that the defendant had had ample time to write to his witness in Alabama. The judge, going fully into the details, states that the district attorney offered to admit the testimony of the absent witness; and the judge ends the long per curiam relating to the facts of the case with the statement:

"If a continuance can be obtained of right for an absent witness in another state, to prove by said witness what the prosecuting witness said to him, the witness (the judge states that that was the purpose) -- parentheses ours -- what he said and what he did some two years before, then it will be impossible to force a trial in any case at the first term of the court. Besides (said the judge) -- parentheses ours -- McClanny was not summoned on the first trial of the case, although he lives within three miles of the accused."

Bill of Exceptions No. 3.

Defendant moved to quash the venire and set aside the jury on the ground that the proces verbal of the deliberations of the jury commission was illegal by reason of the fact that the deputy clerk (the clerk being ill) acted as clerk in place of the clerk.

The act provides:

"Shall exercise all the powers delegated to the clerk."

If the clerk is ill, the chief deputy clerk can act.

Act 220 of 1902 confers the authority.

The question has already received consideration, and, as the cases are decisive, we refer to them as affording sufficient answer to the argument of learned counsel. State v. Edward Johnson, 47 La.Ann. 1092, 17 So. 480; State v. Thomas, 50 La.Ann. 148, 23 So. 250.

It does not in the least appear that fraud has been practiced, or some great wrong committed, in the selection and...