State v. Scarborough

• Decision Date: 30 October 1922
• Docket Number: 25338
• Citation: 152 La. 669,94 So. 204
• Court: Louisiana Supreme Court
• Parties: STATE v. SCARBOROUGH

94 So. 204

152 La. 669

STATE v. SCARBOROUGH

No. 25338

Supreme Court of Louisiana

October 30, 1922

Appeal from Fourth Judicial District Court, Parish of Union; J. B Crow, Judge.

Harry Scarborough was convicted of manslaughter, and he appeals.

Affirmed.

J. W Elder, of Farmerville, for appellant.

A. V Coco, Atty. Gen., E. A. O'Sullivan, Special Asst. Atty. Gen., S. L. Digby, Dist. Atty., of Farmerville (T. S. Walmsley, of New Orleans, and H. G. Fields, of Farmerville, of counsel), for the State.

OPINION

OVERTON, J.

The defendant was charged with the murder of Ollie Westbrook. He was tried twice. On the first trial he was found guilty of manslaughter, but filed a motion for a new trial, which the judge below maintained. On the second trial he was tried for manslaughter, having been acquitted of murder on the first, and was found guilty. On the second conviction, after a motion for a new trial had been overruled, he was sentenced to pay a fine of $ 1 and to suffer imprisonment at hard labor for not less than 9 nor more than 12 years. He has appealed from this sentence, and relies on several bills of exception to obtain a reversal.

The first bill of exception urged is to the competency of a juror named Kennedy. During the course of the juror's examination, on his voir dire, it developed that he was distantly related to the deceased, the exact degree not appearing, and that his wife was a second cousin of the deceased. The juror was closely examined, both by the defendant and the judge, to ascertain whether the relationship would influence his verdict. In the course of the examination he stated that it would seem natural for one to entertain a different feeling towards the man who had killed a person related to him and to his wife from the feeling one would entertain if that man had killed a person not related. He further stated that he could not say whether there would be a feeling of resentment against the man who had killed one related to him and his wife, but did not think there would. He also said that, while it was possible such a relationship might unconsciously affect his verdict, he did not think it would. Finally, the court asked him the following questions, and he gave the following answers:

"Q. Mr. Kennedy, you are the only man that knows whether this might affect your verdict in any way. You know whether you have any feeling of resentment that would weigh with you in the consideration of the case, and I want to know if you have any feeling of prejudice or resentment in the matter because of relationship, or otherwise, that you feel might weigh with you in arriving at a verdict.

"A. I don't feel that it would.

"Q. Were you acquainted with Ollie Westbrook?

"A. No, sir. I knew him when I saw him but was not personally acquainted with him.

"Q. Is there now any personal feeling in your mind, or prejudice, towards this defendant?

"A. Not a bit."

It is not contended that the relationship of the juror, whether by blood or marriage, to the deceased, was so near as to render him incompetent, as a matter of law, nor are there grounds for such a contention, had it been made. It is contended, however, that at no time would he say that the relationship would not affect his verdict, and therefore his answers do not disclose that he was impartial. It is true that at no time did he so say, but we think that his answers, fairly construed, show that while it was possible that it might, yet in so far as he was able to judge it would not. Therefore, as he stated positively as a juror, that he had no prejudice or feeling, at all, against the defendant, and as he was not personally acquainted with the deceased, though he knew him when he met him, apparently not thinking enough of the relationship even to form his acquaintance; and, as it appears that the juror had heard of the killing before, and as ample time had elapsed for a feeling of resentment to have arisen, and as none had arisen up to the time of the trial, we are unable to say that the judge below erred in holding that no danger existed that the juror would be affected by the remote relationship existing, in reaching a verdict. The law vests the trial judge with discretion to determine the competency of jurors, when from physical infirmity, or from relationship, or ignorance of the English language, or from other cause, they may be incompetent to sit in the case. Section 1, Act 135, 1898, p. 216. The discretion, so vested, should not be interfered with, except in case of abuse, and we find none here.

Considering the bills of exception in their logical order rather than in the order in which they are numbered and appear in the transcript, the next bill submitted for our consideration relates to the following question propounded by the accused to A. L. Stancil, an uncle of the deceased, and a witness for the accused, which question is as follows:

"At the date of the preliminary trial, which was held in January of last year, two weeks after the killing, this gun was not introduced in court, was it?"

The state objected to this question on the ground that the evidence sought to be elicited was irrelevant and immaterial, and for the additional reason that the transcript of the preliminary trial was the best evidence. The court maintained the objection, and the defendant then propounded the same question, except more in detail, as follows:

"I will ask you if it is not a fact that this gun was never introduced into this court or presented to the defendant or his attorney until they filed a rule in court shortly before the former trial and several weeks after the preliminary trial in which they asked for the production of this gun?"

This question was also objected to on the ground that the evidence sought was irrelevant, immaterial, and not the best evidence, and upon the further ground that the question was leading. The objection was maintained, and then the defendant offered the minutes of court showing the filing of a motion which contained a prayer for the production of the gun. The state objected to this offering on the ground that it was irrelevant, immaterial, and not the best evidence, and the court maintained the objection.

The record discloses that the defendant called the witness to the stand as his witness, and elicited from him that he was sheriff of the parish at the time of the homicide and of the trial, and was the uncle of the deceased, and also that as sheriff he visited the scene of the homicide on the night of the killing, where he obtained the gun. Then follow the questions and objections above given, and the rulings of the court maintaining the latter. It does not appear that the witness gave any other evidence in the case than that stated.

We learn from defendant's brief that the purpose of the evidence was to show that the state did not produce the gun until it was forced to do so, and infer that the gun was one belonging to the deceased, and in the possession of the witness, as sheriff.

As a matter of course, if those representing the state were withholding the gun, which we do not assume to have been the case, such action was improper. However, as to whether or not the state did not produce the gun until forced to do so was irrelevant. Such action had no legitimate tendency to prove the guilt or innocence of the accused, nor to show that the witnesses for the prosecution had not testified truthfully. A case might so develop that such evidence would be relevant. When one does so develop, the facts that make it relevant should be shown, otherwise the court must presume that the ruling of the trial judge is correct. In so far...