State v. Rocco

• Court: Louisiana Supreme Court
• Writing for the Court: McCALEB
• Citation: State v. Rocco, 222 La. 177, 62 So.2d 265 (La. 1952)
• Decision Date: 15 December 1952
• Docket Number: No. 40945,40945
• Parties: STATE v. ROCCO.

Page 265

62 So.2d 265

222 La. 177

STATE v. ROCCO.

No. 40945.

Supreme Court of Louisiana.

Dec. 15, 1952.

Maurice R. Woulfe, New Orleans, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden, Dist. Atty., Matthew S. Braniff, Asst. Dist. Atty., New Orleans, for the State.

McCALEB, Justice.

Appellant was charged with the attempted murder of one Elmer L. Bahan. The first hearing resulted in a mistrial but, on a retrial, he was found guilty of attempted manslaughter. Following the imposition of a sentence of five years in the State Penitentiary, he prosecuted this appeal depending on four bills of exceptions for reversal of his conviction.

The first bill was reserved to the refusal of the judge to order the court stenographer to read to the jury, from his stenographic notes taken at the first trial, certain testimony given by the prosecuting witness, Bahan. This evidence was offered for the alleged purpose of impeaching Bahan's statement at the second trial that he had not denied, at the first trial, that he had been previously arrested and charged in the Criminal District Court with the offense of assault with a dangerous weapon but that he had merely misunderstood the question concerning his prior arrest when it was propounded to him.

The complaint is without merit. In the first place, the purported contradictory testimony given by Bahan is not annexed to the bill and, consequently, we have no way of knowing whether appellant was prejudiced by the ruling, even were we to consider it to be incorrect. But the ruling was not erroneous for--whereas the impeachment of a witness is in order, when the foundation is laid in accordance with Article 493 of the Code of Criminal Procedure, LSA-R.S. 15:493, by a showing that he gave a contradictory statement, ¹ this right is limited to matters germane to the prosecution. 'It is not competent to impeach a witness as to collateral facts or irrelevant matter.' Article 494 Code of Criminal Procedure, LSA-R.S. 15:494. In the case at bar, the impeachment sought had reference to a collateral fact--whether the prosecuting witness had denied in his previous testimony that he had been arrested.

Bill of Exceptions No. 2 was taken to the overruling of an objection of defense counsel to the introduction in evidence, in connection with the cross-examination of appellant, of a letter written by him to the Ford Motor Company of Detroit, Michigan approximately 60 days prior to the commission of the offense for which he was being prosecuted. The facts of the case necessary to a proper understanding of the question presented by this bill are as follows:

Appellant had purchased a Ford automobile in Zion, Illinois several months before he shot Bahan. He was wholly dissatisfied with the car, claiming that it was a 'lemon'. So exasperated had he become at his inability to obtain satisfactory adjustment of his purchase, that his grievance was directed against all dealers of Ford automobiles. The feeling he harbored was of such vehemence that he undertook a personal picketing campaign against the vendors of Ford automobiles, and particularly the business of New Orleans Motor Company, where Bahan was employed as a salesman. Appellant's method of operation consisted of driving his Ford car, painted and pasted with writings derogatory of its quality, in front of the establishment of New Orleans Motor Company for the express purpose of injuring its business. While he was thus picketing the company's building on May 8, 1951, Bahan hailed him and, when appellant stopped his car, went over to it and remonstrated appellant's unseemly conduct. Thereupon, he was shot in the back by appellant with one of the two pistols the latter carried in the automobile.

Appellant testified in his own behalf that the shooting was accidental and that he was also afraid that Bahan might do him bodily harm. On cross-examination, he was asked by the Assistant District Attorney whether he had written a letter to the Ford Motor Company regarding his unsatisfactory purchase, in which he had stated, among other things, that 'The police told me to shoot the next thug to put his hand in the car and thats just what I'm going to do'. His counsel objected to this line of questioning and also reiterated his protest when the judge, after appellant's admission of the authorship of the letter, permitted it to be received in evidence in connection with his testimony.

The trial judge thought the letter admissible as part of the res gestae and that it was closely related to the issue of 'general malice, general criminal intent, specific intent and motive'.

Appellant contends that the judge was wrong in his ruling for the reason that the letter was too disconnected from the criminal act to form part of the res gestae and that it could not properly be considered as a threat against Bahan.

While we think it clear that the letter would have been admissible on the state's case in chief (provided that it was mentioned in the opening statement) for the purpose of showing guilty knowledge and intent, ² Article 446 of the Code of Criminal Procedure, LSA-R.S. 15:446; State v. Graffam, 202 La. 869, 13 So.2d 249, it was not offered as original evidence but only during the cross-examination of appellant for the obvious purpose of testing his credibility as a witness. That it was receivable for this object--to weaken and destroy appellant's testimony that the shooting was accidental, or in self defense--we have not the...