State v. Salter

• Decision Date: 02 December 1895
• Docket Number: 11,911
• Citation: 19 So. 265,48 La.Ann. 197
• Court: Louisiana Supreme Court
• Parties: THE STATE v. SAMUEL SALTER

19 So. 265

48 La.Ann. 197

THE STATE v. SAMUEL SALTER

No. 11,911

Supreme Court of Louisiana

December 2, 1895

Argued November 23, 1895

Rehearing refused (reasons assigned) February 10, 1896.

APPEAL from the Ninth Judicial District Court for the Parish of Sabine. Hall, J.

M. J Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff, Appellee.

Scarborough & Carver, for Defendant, Appellant.

OPINION

NICHOLLS C. J.

The defendant, indicted for having wilfully feloniously and of his malice aforethought, killed and murdered one Mark Anthony, was tried, convicted of manslaughter and sentenced to eight years in the penitentiary. He appealed.

Defendant's counsel in his brief says "that the only matter presented to this court is that presented in bill of exception No. 3."

The bill commences with the statement that "the charge of the court being in writing it was annexed to the bill as a part thereof, and the prisoner reserved his bill of exception to the said charge." It then proceeds to say: "The accused excepts to the charge for the reason that the same did not contain the law of self-defence, which prisoner's counsel was forced to waive under the statement of the court that, if requested to charge the law of self-defence, the court would be compelled to charge the jury 'that the plea of self-defence admitted the killing by the accused.'" The prisoner's counsel was by the court shown the decision of the Supreme Court, in 36 An. 148, State vs. Watson, as being the authority which was binding on the lower courts and which the court was bound to follow. Prisoner's counsel urged that that doctrine could not apply and should not be so charged in an accidental killing, where there was a dispute as to which of two different shots claimed to have been fired by two different persons firing at each other (had caused the killing).

Prisoner's counsel had prepared special charge No. 15, which was shown to the court, which counsel had designed having the court give, but on being informed by the court that if the law of self-defence was asked, the court would be bound under said decision to charge "that the plea of self-defence, when set up by an accused, admits the killing." Prisoner's counsel being compelled to either have the law of self-defence given by the court as laid down in 36 An. 148, and special charge No. 15 refused, or have it omitted from the charge, was compelled to not request the charge, and so announced to the court; and in the argument of the case before the jury did not claim or discuss the law of self-defence.

The court's statement relative to this matter was as follows:

"The court took no action except to ask counsel whether he would urge the plea of self-defence, and on his answering 'yes,' the judge remarked that the plea of self-defence admits the killing, and handed counsel the case in the 36 An. 148. Counsel read it and made no reply, but in his argument complained that he was cut off from urging the plea of self-defence because, if he urged it, the court would charge that the plea of self-defence admits the killing, and disclaimed the plea of self-defence on this ground, and urged only that defendant did not kill deceased; that the evidence did not show whether he or Tom Anthony killed him. The court then did not give the law of self-defence, as the charge shows.

"Counsel submitted fifteen special charges: No. 9 was canceled; No. 15 was withdrawn; Nos. 8 and 14 were given; and the others refused. When the charge was finished, the court remarked to counsel that he had given Nos. 8 and 14 and refused the others, and counsel replied he would prepare the bill of exceptions. The court understood counsel to mean his bill of exceptions to the refusal of his remaining eleven special charges, and had no intimation that any bill of this kind was reserved until it was presented for signature. If counsel had wanted the law of self-defence given, without the statement that the plea of self-defence admits the killing, he should have asked for it, and, if not given, have excepted to its refusal."

We find at the end of this statement of the court the following:

"To all of which the prisoner by counsel excepts and reserves this bill of exceptions, as well as the refusal of the court to give the special charges from 1 to 15, 8 and 14 excepted, which were given by the court as shown by the special charges and made part of the bill of exceptions with the written charge which was given."

To this the court adds:

"The special charges refused were not good law, and the law on the subject of the malice necessary to constitute murder was fully explained in the charge."

In the brief filed on behalf of the defendant counsel say:

"The consideration of this bill might be further divided into two parts, which we will do, and discuss, first, the action of the court in not giving the special charge; second, the action of the court in not giving a correct charge in the written charge, all of which are annexed to and made part of the bill.

The special charges are directed to presenting the objection to the mode of procedure, and this objection turns on the act of the District Attorney in charging one crime and having a conviction sustained on proof of another. To present the exact question, we suggest the entire question turns on whether 'in a case where an intention exists to do some specific act, and in attempting to do the specific act, an entirely different and distinct and unintended injury is inflicted on another person, can the prosecution make one lumping charge and join the intention to the unintended act and make one compound crime?'

"In this case the shot fired at Tom Antony did accidentally kill Mark Antony, a cousin of the party fired at.

"The indictment charges that the shot was fired at Mark Antony and with murderous intent; the effort is to sustain it by proof that the malice did exist toward Tom Antony, and this malice can be proven and made to support an indictment for accidentally killing Mark Antony, a person toward whom no intent to do injury is conceded to exist. The question is in such a case, can the two offences, the one attempted but not consummated, be lumped with the injury accidentally committed, for which there existed no intention, and under allegations such as in this case which give no intimation of such, be sustained?

"In some States such can be done, but it is because in such States special statutes have been enacted as authorize such. No such has been passed in our State, and unless such a proceeding has the sanction of the common law, it is bad. So we should first determine what the common law rule is on the subject. In doing which we find where "A" shoots at "B" and unintentionally wounds "C," he must be separately indicted and prosecuted for the two separate offences. Wharton C.P. and P., Sec. 486.

"Where an intention exists to do a criminal act, and an unintended crime is committed, the unintended act borrows the criminality of the intended one. If, however, in the specific attempt to commit some specific crime, by accident some unintended act is committed, the proper course is to indict for the attempted act in one indictment, and for the unintended crime in another." Wharton's Criminal Law, Sec. 120, No. 2.

The indictment in this case charges that "Samuel Salter, of the parish of Sabine, on the 15th day of January, in the year of our Lord one thousand eight hundred and ninety-five, at and in the parish, district and State aforesaid, did wilfully, feloniously, and of his malice aforethought, kill and murder one Mark Antony, in the peace of God and the State then and there being."

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