State v. Thornhill
Citation | 178 So. 343,188 La. 762 |
Decision Date | 29 November 1937 |
Docket Number | 34585 |
Court | Supreme Court of Louisiana |
Parties | STATE v. THORNHILL |
Rehearing Denied January 13, 1938 [Copyrighted Material Omitted]
Appeal from Twenty-First District Court, Parish of Tangipahoa Hypolite Mixon, Judge.
Estus Thornhill was convicted of murder, and he appeals.
Affirmed.
Ponder & Ponder, of Amite, for appellant.
Gaston L. Porterie, Atty. Gen., James O'Connor, Atty. Gen., Bolivar E. Kemp, Jr., Dist. Atty., of Amite, and Joseph M. Blache, Jr., Asst. Dist. Atty., of Hammond, for the State.
LAND, Justice. PONDER, J., recused. HIGGINS, J., absent. O'NIELL, Chief Justice, dissents.
Defendant is charged with the murder of Earl Wilkinson, in the parish of Tangipahoa, on the 1st day of September, 1936. He was found guilty as charged, without capital punishment, by the jury, and was sentenced to imprisonment in the state penitentiary for the term of his natural life.
On appeal, the defendant relies, for the reversal of his conviction and sentence, upon numerous bills of exceptions reserved in the court below.
During the selection of the jury, a juror was asked on his voir dire by counsel for defendant if he was not the first cousin of an attorney assisting in the prosecution. After answering in the affirmative, the juror was challenged by the defense for cause on the ground of his relationship to the attorney.
The court ruled that the juror was competent.
Relationship to the district attorney, or associate counsel for the State, is not one of the grounds enumerated in article 351 of the Code of Criminal Procedure as cause for which a juror may be challenged. Besides, the juror answered on his voir dire that the fact of his relationship to associate counsel would not influence him in arriving at a verdict in the case, and the State offered to excuse the juror by consent, before the bill was reserved.
This bill does not show that, at the time of the challenge of this juror for cause, defendant's peremptory challenges had been exhausted before the completion of the panel. Article 353 of the Code of Criminal Procedure.
The bill is therefore without merit.
A juror was asked by the State if he had a fixed opinion, and replied in the affirmative. The juror was then submitted by the State, and counsel for defendant asked him the following question:
The trial judge then excused the juror for the reason that he had a fixed opinion.
This ruling, in our opinion, is correct, as the juror did not state on his voir dire that his opinion would yield to the evidence in the case, or that it could be changed, but that it "would probably yield" to the evidence, and that there was "a doubt" in his mind. Code of Criminal Procedure, art. 351, subd. 1.
Bills of Exceptions No. 3 and No. 9.
Counsel for defendant propounded to a juror on his voir dire the following question:
This question was objected to by the State as not a proper question, as it called for the opinion of the juror on a statement of facts that might not exist.
This objection was sustained by the trial judge, .
In bill of exception No. 9, the following question was propounded by counsel for defendant to a juror on his voir dire:
The district attorney objected to the statement of the law of self-defense made by counsel to the jury, on the ground it is not what appears to the defendant, but to a reasonable man, under the circumstances. The court sustained the objection, stating, at the time, that it was a question of law, and that the court would give the law to the jury.
In his general charge, at pages 106 and 107 of the transcript, the trial judge gave to the jury a clear and correct charge as to the law of self-defense, and it is the duty of the jury to accept and apply the law as laid down for them by the judge.
It is well settled that, if there be at the time an actual physical attack or hostile demonstration of such a nature as to afford reasonable ground to believe that the design is to destroy life or commit a felony on the person assaulted, the killing of the assailant will be homicide in self-defense. State v. Chandler, 5 La.Ann. 489, 52 Am.Dec. 599; State v. Peterson, 41 La.Ann. 85, 6 So. 527.
If from the acts, declarations, and conduct of the deceased, at the time, the accused had reasonable ground to believe himself in immediate danger of loss of life or of great bodily harm, he has the right to defend himself without further delay, though it should afterwards appear that there was no danger at all. State v. Joseph, 45 La.Ann. 903, 12 So. 934; State v. Garic, 35 La.Ann. 970.
Though the law does not demand of the defendant the same coolness and judgment in estimating his danger that can be exercised by the jury in reviewing the circumstances of the encounter, yet whether such reasonable grounds existed is a fact for the determination of the jury. State v. Garic, 35 La.Ann. 970.
We find no error in the ruling complained of by defendant.
Article 354 of the Code of Criminal Procedure provides that:
After the State had peremptorily challenged six talesmen, and, acting under article 354, sought to challenge the seventh juror, defendant objected on the ground that this article was unconstitutional, as it was substantive legislation. This objection was overruled, and properly so, since this court held, in State v. Elmore, 179 La. 1057, 155 So. 896, that the article in question was constitutional, as it related to matter which is purely procedural, citing Constitution of 1921, article 21, section 1-a, as amended, see Act No. 262 of 1926.
The bill is without merit.
Counsel for defendant propounded the following question to a juror on his voir dire:
The State objected to the question as not a correct definition of the law of self-defense. The record fails to show that this objection was sustained, and the juror answered:
"I would kill a man if he was going to kill me, if I thought he was going to, or came at me with something I thought he might kill me with."
Counsel for the defense then propounded to the juror on his voir dire the following question:
"Mr. Smith, if you were confronted with an attack by a man much greater in size and one you knew would beat you, and that it appeared to you that he was about to inflict great bodily harm, would you hesitate in taking his life in defense of your person?"
This question was objected to by the State as not a fair question and the proper statement of the law, and also as calling for the opinion of the juror. The objection was sustained by the court, and counsel for defense reserved a bill.
In the face of the fact that the trial judge, after hearing all the witnesses in the case, found that the testimony failed to establish an overt act or hostile demonstration upon the part of deceased at the time of the killing, the law of self-defense as defined in the question propounded to the juror was based upon an assumed state of facts that did not exist, and therefore had no application to the facts of the case. Besides, proof of disparity in the size and strength between prosecutor and accused is not admissible, unless there has been a prima facie case of self-defense laid by defendant, or such evidence has been preceded by proof that the prosecutor was the attacking party. State v. Broussard, 39 La.Ann. 671, 2 So. 422; State v. Giroux, 26 La.Ann. 582.
The ruling was correct.
During the examination of the regular venire, Charles Black, Jr. who was on the regular list of jurors which was served upon the defendant, was called for examination, but failed to answer, because he was temporarily absent from the courtroom. The regular venire was subsequently exhausted. ...
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