State v. Terry
Decision Date | 10 November 1952 |
Docket Number | No. 40933,40933 |
Citation | 221 La. 1109,61 So.2d 888 |
Parties | STATE v. TERRY. |
Court | Louisiana Supreme Court |
J. Bennett Johnston, Shreveport, for appellant.
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Edwin L. Blewer, Dist. Atty., and John A. Richardson, Asst. Dist. Atty., Shreveport, for appellee.
The defendant appeals from a conviction by a jury and sentence in the district court under which he was committed to the State Penitentiary for a period of ten years.
He was charged by an information filed by the District Attorney with having, on March 15, 1952, 'attempted to murder Rufus Elmer Cooley.' He reserved certain bills of exception to rulings in the court below on which he bases his appeal and seeks a reversal of his conviction.
Defendant had summoned a number of witnesses by whom he intended to adduce evidence of the injured person's dangerous character. To the testimony sought to be elicited from each of ten of them who were called to the witness stand, counsel for the State objected on the ground that the proper foundation for the introduction of such testimony had not been laid in that there had been no proof of a hostile demonstration or an overt act by the injured person. The district judge sustained the objection in each instance and in each, a bill was reserved. Another bill, the eleventh, was taken upon the refusal of the trial judge to sustain a motion for a new trial. The same issue is involved as in the other ten so the whole matter really resolves itself into the one proposition which concerns the discretion of the trial judge in matters of this kind.
The judge's ruling as he states in his per curiam, was based on Article 482 of the Code of Criminal Procedure, LSA-R.S. 15:482, which provides that:
'In the absence of proof of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.'
This article places the matter directly within the discretion and the judgment of the trial judge. He is the one who determines whether there is sufficient proof, or an absence of proof of a hostile demonstration or overt act and passes on the admission of testimony relating to the dangerous character of the person concerned. The decisions of this court are very numerous and very positive on this point, one of the latest being State v. Basco, 216 La. 365, 43 So.2d 761, 763 in which this statement appears:
In the still more recent case of State v. Tobias, 218 La. 226, 48 So.2d 905, after quoting the article of the Criminal Code, the court stated:
Counsel for defendant concedes, as ...
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State v. Lee
...... State v. Terry, 221 La. 1109, 61 So.2d 888 (1952), 14 La.L.Rev. 226--28 (1953); State v. Tobias, 218 La. 226, 48 So.2d 905 (1950). State v. Thornhill, 188 La. 762, 178 So. 343 (1938); State v. Richardson, 175 La. 823, 144 So. 587 (1932); State v. Dreher, 166 La. 924, 118 So. 85 (1928). Chief Justice O'Niell ......
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State v. Edwards
...Thus, we held that the overt act or hostile demonstration must be established to the satisfaction of the trial court. State v. Terry, 221 La. 1109, 61 So.2d 888 (1952); State v. Tobias, 218 La. 226, 48 So.2d 905 However, the legislature amended La.R.S. 15:482 in 1952 to require "evidence" r......
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State v. Groves
...... Based upon this wording, the pre-amendment jurisprudence held that such 'proof' must be to the satisfaction of the trial judge, subject to judicial review of the abuse of his discretion in such regard. State v. Terry, 221 La. 1109, 61 So.2d 888 (1952); State v. Sears, 220 La. 103, 55 So.2d 881 (1951); State v. Cox, 218 La. 277, 49 So.2d 12 (1950); State v. Tobias, 218 La. 226, 48 So.2d 905 (1950). . Page 242 . Whether wisely or not, the 1950 amendment (which provides the present text) ......
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30,043 La.App. 2 Cir. 1/23/98, State v. Washington
...Likewise, the overt act or hostile demonstration had to be established to the satisfaction of the trial court. State v. Terry, 221 La. 1109, 61 So.2d 888, 889 (1952). However, the legislature amended La. 15:482 in 1952 to require "evidence" rather than "proof" of an overt act. "Evidence" of......