State v. Tobias
| Decision Date | 06 November 1950 |
| Docket Number | No. 40019,40019 |
| Citation | 48 So.2d 905,218 La. 226 |
| Parties | STATE v. TOBIAS. |
| Court | Louisiana Supreme Court |
B. B. Croom, Baton Rouge, for defendant appellant.
Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Fred S. LeBlanc, Dist. Atty., Sargent Pitcher, Jr., First Asst. Dist. Atty., Baton Rouge, for appellee.
Moise Tobias, the defendant, was indicted and tried for the murder on October 15, 1949, of one John Esnault. The jury returned a verdict of 'guilty as charged--without capital punishment', and the court sentenced him to confinement at hard labor in the Louisiana State Penitentiary for the rest of his natural life. From the conviction and sentence he has appealed, relying for a reversal on nine bills of exceptions reserved during the course of the trial.
Of these bills, all of which may be considered and disposed of in two groups, some were taken when the court sustained objections by the State to questions propounded to defense witnesses that pertained to the alleged dangerous character of the deceased, especially his reputation for fighting. As to the issue of law thus created Article 482 of the Code of Criminal Procedure recites: '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.' And, in the interpretation of the provision, this court has held that proof of such overt act or hostile demonstration must be made to the satisfaction of the trial judge, who is vested with wide discretion in the matter, before the accused may introduce any evidence of prior altercations with or the dangerous character of his adversary. State v. Scarbrock et al., 176 La. 48, 145 So. 264; State v. Boudreaux, 185 La. 434, 169 So. 459; State v. Scott, 198 La. 162, 3 So.2d 545; State v. Malmay, 209 La. 476, 24 So.2d 869.
As shown by his per curiam the trial judge, in the instant cause, was not satisfied that the proper foundation had been laid for the introduction of the mentioned evidence, he having entertained 'considerable doubt that the deceased had committed a hostile or overt act at the time he was slain or injured, for the reason that the altercation between him and the defendant occurred and they parted, and the deceased had gone down the street some distance, and the evidence indicated that some minutes elapsed between the time they stopped fighting and the later event...
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State v. Lee
...against the accused could be received. 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. Drehe......
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State v. Edwards
...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 (1950). However, the legislature amended La.R.S. 15:482 in 1952 to require "evidence" rather than "proof" of an overt act. In State v. Le......
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State v. Groves
...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). Whether wisely or not, the 1950 amendment (which provides the present text) overruled this prior jurisprudence legislative......
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State v. Burton
...against the accused could be received. 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. ......