State v. Thornhill

Citation178 So. 343,188 La. 762
Decision Date29 November 1937
Docket Number34585
CourtSupreme Court of Louisiana
PartiesSTATE 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.

OPINION

LAND, Justice.

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.

Bill of Exception No. 1.

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.

Bill of Exception No. 2.

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:

"Q. You stated that the opinion you had would probably yield to the evidence. Now, Mr. Stewart, could you take the testimony produced on this stand and try this case and disregard what you heard about it, if that is the law and the Court instructs you to do that?"

"A. There is a doubt in my mind."

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:

"Q. Would you hesitate to take the life of your assailant, if you were assailed, and your life appeared to be in imminent danger?"

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, "for the reason that counsel for defendant refused to state the proposition more clearly. This juror was subsequently asked the correct question and qualified, and no bill was reserved by either side".

In bill of exception No. 9, the following question was propounded by counsel for defendant to a juror on his voir dire:

"Q. The question of self-defense is not what it appears to you as a juror sitting in the jury box, but how it appeared to the defendant, and, if the danger appeared to the defendant to be imminent and to be about to inflict upon him great bodily harm or attempt on his life, he can act to the extent of taking the life of his adversary. Will you take the law as given you by the Court, and if it appears to you under the circumstances that the defendant was possessed of a real imminent fear of bodily harm or an attempt on his life, and he acted in defense of his life, will you give him the benefit of any doubt that might get into your mind?"

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.

Bill of Exception No. 4.

Article 354 of the Code of Criminal Procedure provides that: "In all trials for any crime punishable with death, or necessarily with imprisonment at hard labor, the defendant shall be entitled to challenge peremptorily twelve (12) jurors, and the prosecution twelve (12). In all other criminal cases the defendant shall have six (6) peremptory challenges and the State six (6)."

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.

Bill of Exception No. 5.

Counsel for defendant propounded the following question to a juror on his voir dire:

"Q. Mr. Smith, the law of self-defense is every man has a right to protect his person or body from an unwarranted attack which is designed to inflict bodily harm and an attempt at your life, if you were confronted with such an attack would you hesitate in acting to defend your property and to the extent of taking your adversary's life?"

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.

Bill of Exception No. 6.

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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1 books & journal articles
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    • Iowa Law Review No. 97-5, July 2012
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