State v. Thompson

• Decision Date: 02 December 1901
• Docket Number: 14,075
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. GEORGE THOMPSON

30 So. 895

106 La. 362

STATE OF LOUISIANA v. GEORGE THOMPSON

No. 14,075

Supreme Court of Louisiana

December 2, 1901

January 1901

APPEAL from the Criminal District Court, Parish of Orleans. -- Chretien, J.

J. Ward Gurley, District Attorney, and S. A. Montgomery, Assistant District Attorney, for Plaintiff, Appellee.

James T. Nix and John D. Nix, for Defendant, Appellant.

MONROE J. BREAUX, J., dissents. PROVOSTY, J., takes no part, he not having been a member of the court when the case was submitted.

OPINION

MONROE J.

STATEMENT.

The defendant, having been convicted of murder and sentenced to death, has appealed to this court, and relies upon the following bills of exception, as affording grounds for the reversal of the verdict and judgment appealed from, to-wit:

"Be it remembered that on the trial of the above entitled and numbered case, Hon. S. A. Montgomery, assistant District Attorney, in his closing argument, referred to six fatherless children, in his appeal to the jury, when there was no evidence in the case about any children of any kind, as is shown by the testimony of Mr. S. A. Montgomery himself, hereto annexed." (Whereupon counsel for the accused objected and excepted.

To this statement the Judge a quo adds: "The testimony of the District Attorney, made part of this bill, shows exactly what did take place during the argument of the case. When the protest was made, the District Attorney stopped all reference to the subject-matter, and the argument continued upon other grounds. There was nothing for the Court to pass upon, as the protest was heeded. I do not believe that any injury was done to the accused in this case."

The testimony, made part of the bill, is as follows:

"Q. Mr. Montgomery, will you please state what you said in your argument in reference to the six children of the deceased, before the jury, in this case? A. I remember it, I believe; the widow had been introduced by the State, I believe I said in the argument, by the State -- to identify the body that died at the hospital -- Mr. Nix, in his argument, referred to her having been brought in, in her widow's weeds. I think I said this: 'I will say nothing to you of the six fatherless little children,' or that expression. Q. Referring, of course, Mr. Montgomery, to their being made fatherless by the defendant having murdered their father? A. Referring to your reference to the widow's weeds, as the widow in question was the wife of the man Thompson was accused of killing, and she was not on the stand. Q. There had been no evidence introduced in reference to any of those children? A. None whatsoever. Q. There was no other witness that testified anything about those children? A. As I remember it, the State introduced nothing about those children. Q. And to which you made reference? A. Yes, sir. Q. Counsel for defendant objected to this line of argument? A. Well, as I remember it, at the point where I said, 'in discussing those six fatherless children,' I believe the counsel for the defense objected, calling the Judge's attention to it, and asked for the stenographer. I know, however, that there was no stenographer present, and no stenographer was produced. I have no recollection as to whether the Judge stopped me or not. My impression is, however, that he did. If he did, I don't know what he said. I know you took exceptions to what I was saying. Q. Didn't I take a bill of exceptions to what you were saying? A. Yes, I believe you did, and asked to have the note of exceptions recorded in lieu of a bill."

A motion for new trial was made, upon the grounds which are here urged, and a bill of exceptions was taken to the refusal of the court to grant the same.

OPINION.

There can be no question of the impropriety of the Assistant District Attorney's reference to the six fatherless children of the dead man, for the alleged murder of whom the defendant was on trial for his life, and the fact that their mother, the widow of the deceased, in her habiliments of woe had previously been introduced, as a witness on behalf of the State, was a circumstance, which, so far from weakening the effect of the reference, was well calculated to prepare the jury for a deeper impression than might otherwise have been made by the pathetic mental picture thus presented to them, from beyond the record, in the closing argument for the prosecution. The counsel for the defendant objected and excepted and the assistant district attorney, as the trial judge informs us, "stopped all reference to the subject matter, and the argument continued upon other grounds." But, why should he have gone further, even had no objection been made? He had informed the jury, not lawfully, but in plain violation of an elementary and universally recognized rule of law, that, by the death of the man whom the defendant in the case before them was charged with having murdered not only had the grief-stricken woman, whom they had seen, been deprived of her husband, but that six little children, whom they had not seen, and who were thus brought to their knowledge, at the close of the case, had been left fatherless. Conceding that six children had been left fatherless, and that they were little children, those facts had not been established, and could not have been established by sworn evidence, because such evidence would have been excluded, and yet, they went to the jury in the unsworn statement of the prosecuting officer, whom the counsel for the defendant could neither cross-examine nor answer in argument. The judge a quo states that, the protest of the defendant's counsel having been heeded, there was nothing for the court to pass on. The protest, it appears, was heeded to the extent that the prosecuting officer made no further reference to the subject which had provoked it, but "the argument continued on other grounds," with no disclaimer as to the truth of the statement which had been made, or as to the right of the speaker to make it, and it is not claimed that the judge, either at the moment, or in the charge subsequently given, instructed the jury that the statement, as made, met with his disapproval and was unauthorized, or should be disregarded by them in considering their verdict. It is true that the counsel for the accused made no demand for such instructions, and it is also true that there is a weight...