State v. Richardson

• Decision Date: 31 October 1932
• Docket Number: 31930
• Citation: 144 So. 587,175 La. 823
• Court: Louisiana Supreme Court
• Parties: STATE v. RICHARDSON

144 So. 587

175 La. 823

STATE v. RICHARDSON

No. 31930

Supreme Court of Louisiana

October 31, 1932

Dupont & Dupont, of Plaquemine, for appellant.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty Gen., and Hewitt Bouanchaud, Dist. Atty., of Baton Rouge (James O'Niell, Sp. Asst. to Atty. Gen., of counsel), for the State.

OVERTON and BRUNOT, JJ., dissent on bill No. 1, but concur in decree the concurrence being based on bill No. 2.ST. PAUL, J., takes no part.

OPINION

O'NIELL, C. J.

The appellant stands convicted of manslaughter and sentenced to imprisonment in the penitentiary for a term not less than five or more than seven and a half years. He killed a man named Hewes.

The defense was that the fatal shot was fired in self-defense after Hewes had shot at the defendant with a rifle. The only testimony relating to the question, whether the killing was done feloniously or in self-defense, was the testimony of a constable named Eugene Schustz, and that of a man named Adolph Landry. They were witnesses for the state. The defendant did not offer any evidence in the case. Schustz testified that he went to the residence of the defendant and arrested him immediately after the shooting, and that the defendant then voluntarily made a statement to the effect that he had shot Hewes in self-defense, after Hewes had shot at him with a rifle; and that the defendant said also that Hewes had come to his, defendant's, home, armed with the rifle, accused the defendant of having stolen some goods from him, and said that he had come to guard the house until the arrival of the sheriff.

During the cross-examination of Schustz, the defendant's attorney undertook to prove by the witness that the general reputation of Hewes in the community was that of a dangerous character. The district attorney objected to the introduction of such evidence, on the ground that there was no proof of a hostile demonstration or an overt act on the part of Hewes. The judge sustained the objection, and the defendant's attorney reserved a bill of exception. The objection was founded upon article 482 of the Code of Criminal Procedure, viz.:

'In the absence of proof of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.'

When the evidence was offered and the objection made, the testimony of Schustz was the only evidence before the court as to Hewes' having made a hostile demonstration or committed an overt act. The testimony had been introduced by the state, and it stood uncontradicted, that Hewes had made the hostile demonstration, had committed the overt act, by firing upon the defendant with a rifle, before the defendant fired upon Hewes.

The testimony of Landry, which was introduced afterwards by the state, did not directly contradict the testimony which Schustz had given, to the effect that Hewes had made the hostile demonstration, or committed the overt act. Landry's testimony consisted only of the repeating of a dying declaration made by Hewes, at his home, soon after the shooting. The dying declaration, as repeated by Landry, shows that Hewes was very doubtful about the details of the fatal difficulty. He said that he did not aim to shoot Jesse Richardson; that he might have had the gun cocked; that he did not remember whether he had it up to his shoulder, but that he must have pulled the trigger in falling. Here is how Landry repeated the dying declaration: 'I didn't go over the bayou to hurt Jesse. I simply went over there to guard the house until the sheriff came. I didn't aim to shoot Jesse. I might have had the gun cocked. I don't remember whether I had it to my shoulder or not, but in falling I must have pulled the trigger. Jesse stole several pairs of ladies' stockings and several pairs of men's socks,' etc. While Hewes was enumerating the articles which he said Jesse Richardson had stolen, his voice weakened so that he could not articulate. He died ten or fifteen minutes afterwards.

Evidence of the dangerous character of Hewes, by proof of his general reputation, was offered for the purpose of corroborating the statement of the defendant that Hewes had provoked the fatal difficulty by making a hostile demonstration, or committing an overt act. The evidence of the dangerous character of Hewes was, of course, not relevant to any other issue, or admissible for any other purpose but to corroborate, as far as it tended to corroborate, the testimony to the effect that Hewes had provoked the fatal difficulty. Wharton's Criminal Evidence (10th Ed.) Vol. I, p. 246, No. 63a.

The writer of this opinion adheres to the dissenting opinion which he has handed down in many cases, particularly in State v. Boudreaux, 137 La. 227, 68 So. 422, State v. Harvey, 159 La. 674, 106 So. 28, and State v. Dreher, 166 La. 924, 118 So. 85, that the doctrine of article 482 of the Code of Criminal Procedure, and of the jurisprudence on which the article is founded, is violative of the Constitution of Louisiana (article 19, § 9), in that it undertakes to make the judge, instead of the jury, decide the question of fact on which depends the question of guilt or innocence, and is violative of the Fourteenth Amendment of the Constitution of the United States, in that it undertakes to deprive the defendant of his life or liberty without due process of law, by depriving him of the benefit of his evidence until the judge has decided in his favor the very question to which alone the evidence is relevant. The writer of this opinion believes that, in a prosecution for murder or manslaughter, where the defendant admits the killing but contends that he did it in self-defense, evidence of the dangerous character of the person killed, or of previous threats made by him to take the life of the defendant, is admissible whenever there is any evidence that the person killed was the aggressor in the fatal difficulty, and when, therefore, the question which the jury has to decide is whether the defendant or the person killed was the aggressor in the fatal difficulty.

The majority of the members of the court, however, adhere to the rule stated in many decisions of this court, and restated in the Code of Criminal Procedure, that, in a prosecution for murder or manslaughter, evidence of the dangerous character of the person killed, or of his having threatened to take the life of the defendant, is not admissible until the defendant has proved to the satisfaction of the judge that the person killed first made a hostile demonstration, or committed an overt act. This case, therefore, must be decided according to that rule; as a part of which rule the evidence on the question of the hostile demonstration, or overt act, on which evidence the district judge based his ruling, is subject to review by this court.

Having considered the evidence on the subject, consisting only of the testimony of the state's witnesses, Schustz and Landry, we have concluded that there was sufficient evidence of the hostile demonstration or overt act on the part of Hewes to warrant the introduction of evidence on the question of his dangerous character by proof of his general reputation in the community in which he lived.

The district judge, perhaps, based his ruling only upon the so-called confession made by the defendant to the constable Schustz, because, when the evidence of the dangerous character of Hewes was tendered and objected to, the dying declaration of Hewes had not been offered in evidence. Our ruling, however, would be the same, whether we should consider only the confession made by the defendant to Schustz, or should consider...