State v. Taylor

• Decision Date: 25 February 1929
• Docket Number: 29685
• Citation: 120 So. 875,167 La. 1113
• Court: Louisiana Supreme Court
• Parties: STATE v. TAYLOR

120 So. 875

167 La. 1113

STATE v. TAYLOR

No. 29685

Supreme Court of Louisiana

February 25, 1929

Appeal from Fourteenth Judicial District Court, Parish of Beauregard; Thomas F. Porter, Judge.

Lacey Taylor was convicted of assault by willfully shooting at, and he appeals.

Affirmed.

Ped C Kay, of De Ridder, for appellant.

Percy Saint, Atty. Gen., John J. Robira, Dist. Atty., and S. H Jones, Asst. Dist. Atty., both of Lake Charles (E. R Schowalter, Asst. Atty. Gen.), for the State.

OPINION

THOMPSON, J.

The defendant appeals from a maximum sentence of 20 years and a minimum of 13 years at hard labor for assault by willfully shooting at.

The offense was committed on June 3, 1928, the indictment was returned on October 2, 1928, and the defendant was arraigned on the same day. The case was tried on October 25, 1928.

There are seven bills of exception in the record presenting alleged injurious errors committed by the court below.

On the day before the trial a motion for a continuance was filed based on the absence of a witness named Frank Ehart. The motion was fixed for hearing the following morning, when it was heard and overruled.

The proposed witness had been a resident of the parish where the crime was committed, and, according to the affidavit, was with the defendant during the time when the crime is said to have been committed. Within the week after the crime was committed and after the defendant had been arrested Ehart left for parts unknown and was absent from the state when the affidavit was filed for a continuance. This fact was known to the defendant some 30 days before the trial.

The defendant, in support of his motion for a continuance, testified that Ehart first went to the wheat fields and then went to Detroit, Mich., to look for a job; that his folks said he was there.

The judge says that reliable witnesses testified that Ehart frequently left his domicile for indefinite stays and that the testimony showed that he aided, abetted, and assisted in the commission of the crime, and that he left almost immediately after its commission. And considering all of these facts there was very little likelihood of the witness returning to the parish where he would most likely be tried for the crime.

The rule is well settled that the matter of granting a continuance is within the discretion of the trial judge and his ruling will not be reversed unless clearly erroneous.

In the case of the State v. Thompson, 121 La. 1051, 46 So. 1013, it was said:

"The authorities discountenance continuances on the ground of the absence of witnesses who are not within the process of the court. In such cases an affirmative showing should be made strong enough to convince the court that the evidence is material and admissible; that due diligence has been exercised; and that the absent witnesses can and will be produced at the future time."

In this case the judge among other reasons held that the defendant had not exercised proper diligence in trying to secure the return of the witness to the state. But granting that he was wrong in so holding, it does not affirmatively appear that the witness can be produced or will ever be produced to testify in the case, but, on the contrary, being a fugitive from justice, the presumption is against his return to the jurisdiction of the court.

But more than that the affidavit does not on its face show any particular facts which the defendant expects to prove by the witness. The affidavit merely states the conclusion of the defendant that if the witness was present he would swear that he was with the defendant during the entire time during which the crime was committed, and that he would swear that defendant did not commit the crime.

It is clear the motion does not come up to the legal requirements and was properly overruled.

Bill 2. This bill is practically abandoned. In his brief counsel says that the bill was reserved during the trial when defendant sought to show by several witnesses previous threats, previous difficulties, and hostile demonstration. The judge says that there was no proof of an overt act, and this is acquiesced in by the counsel.

It appears that the defense was an alibi, and it is difficult to reconcile such a defense with a claim of self-defense.

Bill 3. The defendant offered to prove by the witness Pressley where the defendant was at the morning after the crime had been committed, the purpose being to corroborate defendant's statement as to his whereabouts at the time the crime was committed.

The judge said that he was at a loss to understand how the fact that the defendant was five or six miles from the place of the crime some three hours after the crime had been committed tended to prove that he was not at the scene of the crime when it was committed. There was no error in the ruling.

Bill 4. The defendant complains in this bill of certain remarks made by the district attorney in his closing argument to the jury:

"It is well for the absent witness that he was not present, that if he were present he would be tried with accused as a codefendant."

The witness referred to was Ehart, the one named in the affidavit for a continuance. The defendant had testified on the trial in support of his alibi that he was in company with Ehart at the latter's house at the time the crime was committed. All of the state witnesses had testified that Ehart drove up in the car with the...