State v. Walker

• Decision Date: 08 November 1943
• Docket Number: 37185.
• Citation: 204 La. 523,15 So.2d 874
• Court: Louisiana Supreme Court
• Parties: STATE v. WALKER.

15 So.2d 874

204 La. 523

STATE v. WALKER.

No. 37185.

Supreme Court of Louisiana

November 8, 1943

S. R. Thomas, of Natchitoches, for defendant and appellant.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp. Asst. Atty. Gen and Ben F. Thompson, Dist. Atty., and Walter M Hunter, Asst. Dist. Atty., both of Alexandria, for the State plaintiff and appellee.

ODOM Justice.

The defendant was indicted for the crime of manslaughter, convicted as charged, and sentenced to serve a term in the state penitentiary at hard labor

He appealed from the conviction and sentence, and relies on nine bills of exception, which disclose the alleged errors complained of. The record discloses that the defendant and the deceased 'had a row', which began in a negro saloon and dance hall known as the Red Onion' and ended within two or three minutes on the outside of the building. There was evidence to show that, after the so-called 'row' on the inside of the building, the defendant left the dance hall and stood outside near the building until the deceased walked out to where the defendant was standing. The quarrel, or 'row', was there resumed, and the defendant wounded the deceased by stabbing him with a knife, which wound proved fatal.

Bill of Exception No. 1.

A man named Tom Smith was called and sworn on behalf of the State, and was asked by the district attorney on direct examination the following question:

'Did Leroy Walker [the defendant] and Wilbur Robinson [the deceased] have a fuss on the inside of the place?'

Counsel for defendant objected to this question on the ground that the purpose of the question was to show that the defendant was actuated by malice, and that, since he was charged with manslaughter and not murder, any testimony tending to show malice was inadmissible. The objection was overruled by the court, and Bill of Exception No. 1 was reserved to this ruling. The witness answered the question as follows: 'Yes, Sir.' The witness was then asked 'How long after the fuss was it that the accused stabbed Robinson?' And the witness answered: 'About three minutes.'

The judge in his per curiam said:

'This evidence was admissible not only as part of the res gestae but further to show that defendant had the deliberate intention to slay the deceased at the time of the stabbing.'

The judge did not err in his ruling. The testimony was admissible as part of the res. The circumstances and incidents connected with the killing of the deceased formed one continuous transaction. Article 448 of the Code of Criminal Procedure reads as follows:

'To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.'

In State v. Schmidt, 163 La. 512, 112 So. 400, 401, this court said that 'The general rule is that all that occurs at the time and place immediately before and after a difficulty is admissible as res gestae'. State v. Bradford, 164 La. 423, 114 So. 83; State v. Dale, 200 La. 19, 7 So.2d 371, and authorities there cited.

The testimony was introduced, not for the purpose of showing that the defendant was actuated by malice, but for the purpose of showing that he was guilty of the crime of manslaughter, an essential ingredient of which crime is that the slaying is done feloniously and without justification.

The defendant was on trial for manslaughter, and, in order to convict, the burden was upon the State to prove that the homicide was willful and felonious. Evidence offered for this purpose was admissible even though it might indicate that defendant was actuated by malice. The jurisprudence to this effect is settled. State v. Crump, 116 La. 978, 41 So. 229; State v. Woods, 161 La. 863, 109 So. 519 (overruling State v. McGarrity, 139 La. 430, 71 So. 730); State v. Elmore, 179 La. 1057, 155 So. 896; and State v. Richey, 198 La. 88, 3 So.2d 285, where the above cases are cited with approval and reviewed.

Bill of Exception No. 2.

Bill No. 2 was reserved to the ruling of the court permitting the witness Tom Smith to testify that he attempted to separate the accused and the deceased and that he received a knife wound on the arm while doing so. The witness was asked: 'Did you get cut when you shoved him [the accused]?' Counsel for defendant objected to this testimony on the ground that it was irrelevant, immaterial, and prejudicial to the defendant. In his per curiam to this bill, the trial judge said:

'The witness Smith intervened to prevent the stabbing and shoved the accused back either just before or after the fatal stab was delivered by the accused. The witness was cut at the time and as it was all one happening, it was admissible.'

The trial judge did not err in his ruling. The testimony was admissible as a part of the res and was not prejudicial to the defendant. See authorities cited under Bill No. 1.

Bill of Exception No. 3.

Tom Smith was called as a witness by the State, and, while on cross-examination, counsel for defendant asked him the following question: 'You have a pretty bad reputation as a law violator?' The district attorney objected to this question on the ground that counsel for defendant was not pursuing the prescribed method for impeaching the credibility of a witness. The court sustained the objection, and Bill No. 3 was reserved.

The purpose of the testimony sought to be elicited from the witness was to impeach his credibility. Article 495 of the Code of Criminal Procedure prescribes the method to be followed for the impeachment of the credibility of witnesses. That article reads as follows:

'Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness. But before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; provided, always, that a witness, whether he be the defendant or not, may be compelled to answer on cross-examination whether or not he has ever been indicted or arrested and how many times.'

Since counsel for defendant was attempting to impeach the credibility of the witness Smith, he should have followed the rule laid down by the Code. It would have been proper for counsel to have asked the witness whether he had ever been convicted of a crime, and, if the witness had failed to admit that he had, then evidence of such conviction could have been adduced from another source to show that he had. Or the witness could have been compelled to answer on cross-examination whether or not he had ever been indicted or arrested and, if so, how many times.

After the judge sustained the objection to the question, counsel made no further effort to impeach his credibility. The judge did not err in his ruling.

Bill of Exception No. 4.

George Boyd was called as a witness on behalf of the defendant and was asked by counsel the following question: 'Did you see the deceased that night at the Red Onion with a knife?' The question was objected to by the district attorney on the ground 'that it formed no part of the res gestae'. The objection was sustained, and Bill No. 4 was reserved.

The per curiam of the judge reads as follows:

'Counsel for defendant was seeking to bring before the jury some other happening which took place prior to the fatal stabbing and in no way connected with the present case. It could have been of no assistance to the jury in arriving at a correct verdict.'

The trial judge, having heard the testimony, was in position to know whether the fact that the deceased had a knife at the dancehall, if in fact he did have one, had any connection whatever with the difficulty between the deceased and the accused which resulted in the fatal stabbing of the deceased. The excluding of testimony because of irrelvency rests largely in the discretion of the trial judge. State v. Stracner, 190 La. 457, 182 So. 571, citing Article 435 of the Code of Criminal Procedure, and State v. Bouvy, 124 La. 1054, 50 So. 849.

We cannot say that the judge, in ruling as he did, abused his discretion.

Bill of Exception No. 5.

While Tom Smith was on the stand as a witness for the State, he was asked by the district attorney whether he received a knife wound in the arm while he was attempting to separate the accused and the deceased. Counsel for defendant objected to this evidence on the ground that it was irrelevant and immaterial and prejudicial to the defendant. The objection was overruled on the ground that the testimony was admissible as a part of the res. The trial judge, in explaining to counsel for the defendant the reason for his ruling, made the following remark in the presence of the jury: 'That it all took place in two or three minutes.' Counsel for the accused objected to this remark of the judge and reserved Bill of Exception No. 5, on the ground that the remark of the judge constituted a comment on the facts and was prejudicial to the defendant. The judge in his per curiam to this bill said:

'The statement made by me was directed to the counsel, explaning my ruling on the evidence given by Tom Smith as indicated in Bill No. 2, and was necessary in order to explain to the counsel that the evidence was admissible as a part of the res gestae. I stated to counsel that the cutting of Smith and the stabbing of deceased all happened at the same time and within about three minutes. This was not disputed by anyone. In my charge to the jury 1 charged them that they alone were the sole judges of the facts and that the Court was not permitted to even comment upon...