State v. Simon

• Decision Date: 04 November 1912
• Docket Number: 19,543
• Court: Louisiana Supreme Court
• Parties: STATE v. SIMON

59 So. 975

131 La. 520

STATE v. SIMON

No. 19,543

Supreme Court of Louisiana

November 4, 1912

Appeal from Criminal District Court, Parish of Orleans; Frank D Chretien, Judge.

Wilford J. Simon was indicted for murder and convicted of manslaughter, and he appeals. Affirmed.

Henriques & Otero, of New Orleans, for appellant.

St Clair Adams, Dist. Atty., and Warren Doyle, Asst. Dist Atty., both of New Orleans, for the State.

OPINION

PROVOSTY J.

The accused was tried for murder, and convicted of manslaughter, and sentenced to 10 years at hard labor.

A state witness having said on cross-examination that he had testified on two previous occasions, a first time in the district attorney's private office, and a second time on the preliminary examination of the case, and that his testimony had been the same as now, and had been taken down in writing, counsel for accused orally in court called upon the district attorney to produce the testimony given in his private office. The district attorney would not do so, and the court refused to compel him, although counsel stated that the object was to impeach the witness by showing that the said testimony was different from that on the trial.

If counsel, instead of saying in general terms that the said testimony was different, had recited it in an affidavit, or, at any rate, given the particulars of it under oath, thereby making proper showing, the question would have arisen whether the court can compel the prosecution to produce on the trial a material private document of which it has possession. But no such showing was made, and for the very good reason, as is manifest from the brief, that counsel did not know that said testimony had been different, and therefore were not in a position to make any such showing. So that in making said request counsel were merely on a fishing expedition.

"The courts uniformly decline to grant an application for production and inspection where it is merely for the purpose of a fishing examination." 23 A. & E. E. of Law, 179.

Counsel say that said testimony was a public document, and that, therefore, they were entitled to access to it.

The document was not a public document; but even if it had been, and even if the ruling denying access to it had been erroneous, there would be no ground for reversal, because the document, even if produced and found to be conflicting with the testimony on the trial, would have been inadmissible in evidence; since the sole purpose for which it was wanted was for impeaching the witness, and it would have been inadmissible for that purpose, the proper foundation for its introduction in evidence for that purpose not having been laid by calling the attention of the witness to the particulars wherein the two statements were contradictory.

"Before the statements could be introduced for such purpose, it is essential, under the rule, that the substance of the contradictory matter should have been stated to the witness, and he should have been asked whether the statements had been made." State v. Jones, 44 La.Ann. 961, 11 So. 596.

Bills of exceptions 2, 3, and 4 will be considered together. It was his own wife he was charged with having murdered. Some six weeks previous to the homicide, they had separated. About two months before the homicide, she had lodged a complaint against him in the juvenile court for nonsupport of their minor child, and he had been condemned to pay $ 3 per week for the support of the child; and about a month after this judgment had been rendered, while she and her mother were visiting a neighbor, he had (as the witness expressed it) "come in the gate behind her, and flung the gate in, and put a box behind it, and run in and grabbed her, and asked her to come back to him, and told her that, if she did not want to come by good will, he would make her come by bad will." Before the separation, they had occupied one side of a double cottage of which the parents of the wife occupied the other side. After the separation, the wife lived with her parents. On the afternoon of the 13th of June the father-in-law, while going to his house, and when about a square and a half from it, heard pistol shots, and presently saw "a lot of people" running to his house. He then began running, too. When he reached the street corner, he heard some more shots, and saw his wife run out of the house, screaming, with her hands up, and go through the gate of the house next door. On entering the front room, he saw his daughter stretched on the floor, dying or dead, and saw the accused in the third room with a pistol in his hand. Accused aimed the pistol at him, and he grabbed a water pitcher and hurled it at accused. The pistol snapped, but the pitcher took effect on the side of the head of accused. One of the witnesses who, when the first shots were fired, was lying down reading in a house about half a block away, hastened to the spot on hearing the shots, and on the way passed the mother as she was running out of the house to the house next door, screaming. When he reached the house, the wife was dead, and the accused was fighting with his father-in-law, striking him on the head with the butt of the pistol.

The accused objected on the ground of irrelevancy to proof of the incident at the neighbor's house when he told his wife that she would have to come to him by good will or else by bad will, and to proof of the proceedings in the juvenile court. The court admitted the proof as going to show intent.

The rulings we think correct.

"It is settled that the state had a right to prove a course of ill treatment and of quarrels with his wife on trial of the husband for her murder; also, that a complaint was filed against the defendant by the deceased, and was pending as tending to show motive and animus on the part of the defendant to kill the deceased. This testimony, while in and of itself inadmissible under the rule adverted to, yet, taken in connection with other relevant facts in the case, tends to establish the motive which actuated the defendant in his hostility towards the deceased, and for that reason is competent to be considered and weighed by the jury, in connection with the other testimony, in determining the question of motive, and, under some circumstances, in fixing the identity of the murderer." 1 Wharton's Cr. Ev. (10th Ed.) par. 43.

See, also, State v. Nix, 111 La. 812, 35 South 917; State v. Coleman, 111 La. 303, 35 So. 560; State v. Fontenot, 48 La.Ann. 306, 19 So. 111; State v. Birdwell, 36 La.Ann. 861; State v. Anderson, 45 La.Ann. 652; ^[1] State v. Johnson, 36 La.Ann. 853; State v. Goodson, 116 La. 389, 40 So. 771; Marr's Crim. Jur. p. 68.

The accused objected to the proof of the fight with the father on the same ground of irrelevancy. The court admitted it to show intent, and also because this fight constituted practically one continuous transaction with the killing, and was therefore part of the res gestae.

These rulings also were correct. Marr's Crim. Jur. p. 676; State v. Blount, 124 La. 202, 207, 50 So. 12, and cases cited; State v. Robinson, 112 La. 939, 36 So. 811.

Bill of exception No. 5. On the same occasion on which he killed his wife the accused shot his mother-in-law, and she died from the wounds three days later. Whether she made a dying declaration or not did not appear from the evidence. The counsel for accused was proceeding to argue to the jury that she had made such a declaration, and that it must have been unfavorable to the prosecution as otherwise the prosecution would have offered it in evidence, when, on objection made by the district attorney, the court stopped counsel, and said, in the presence of the jury, that no dying declaration had been made, and that, even if one had been made, it would not have been admissible in evidence. Counsel contend that these remarks of the judge constituted an illegal commenting on the facts by the judge; and that it was prejudicial because the line of defense was that the accused had killed his wife while firing on his mother-in-law, who was firing at him.

There is absolutely nothing in the record to show that any evidence whatever was introduced on the trial to the effect that the mother-in-law fired at accused. The only mention of her having done so is contained in the affidavit for new trial. But the ruling was correct, even granting that the line of defense was as just stated, and that evidence was introduced to show that the mother-in-law fired upon the accused; for there not having been any proof of a dying declaration having been made, counsel were traveling out of the record in stating that one had been made, and the judge may stop counsel from traveling out of the record Marr's Crim. Jur. p. 772; State v. McCort, 23 La.Ann. 326. Moreover, the judge is not bound to allow counsel to misstate the law to the jury (12 Cyc. 584; State v. Menard, 110 La. 1098, 35 So. 360), and counsel were, in effect, doing so when they were basing an argument upon the nonproduction in evidence of any dying declaration the mother-in-law might have made, since they were in effect telling them that such a dying declaration, if made, would have been admissible in evidence, whereas such is not the law; the rule admitting dying declarations being confined to the dying declaration of the person for whose killing the accused is being tried, the dying declaration of no other person being admissible (12 Cyc. p. 440 [c], 981 [b]), and this is so even where two persons are killed by the same act (10 A. & E. E. of Law, 373...