State v. Willis
| Citation | 241 La. 796,131 So.2d 792 |
| Decision Date | 29 June 1961 |
| Docket Number | No. 45575,45575 |
| Parties | STATE of Louisiana v. Kirby WILLIS. |
| Court | Supreme Court of Louisiana |
Mouser & Mouser, Oakdale, for appellant.
Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. atty. Gen., Bernard N Marcantel, Dist. Atty., Jennings, Alfred R. Ryder, Asst. Dist. Atty., Oberlin, C. W. Berry, Oakdale, Sp. Prosecutor, for appellee.
Appellant was charged with and convicted of an aggravated battery upon Betty Jean Willis by shooting her with a pistol for violation of R.S. 14:34 and sentenced to serve seven years at hard labor in the State Penitentiary. During the trial 21 bills of exceptions were reserved by appellant upon which he relies for a reversal of his conviction.
All of the bills relate to two alleged prejudicial errors committed by the judge--(1) in permitting the district attorney to impeach Mrs. Willis, the State's only eyewitness to the crime, and (2) in admitting certain prior inconsistent statements made by her as proof of appellant's guilt, despite his timely request that the jury be instructed that this hearsay evidence was receivable only for impeachment purposes.
The facts essential to a proper understanding of appellant's bills are as follows: On the night of August 26, 1960, while appellant was visiting Mrs. Willis in the living room of her home at Oakdale, Louisiana, she sustained a scalp wound upon being struck in the head by a bullet fired from a pistol belonging to appellant. At the time of the incident Mrs. Willis and appellant were on intimate terms and he frequently called on her at night when she was alone, the visits being made possible by the absence of her husband, appellant's cousin, who was at work on these occasions. When appellant was released on bond following the filing of the charge herein, he moved to Baton Rouge with Mrs. Willis where they lived together for about two weeks. Her husband contacted her there and induced her to return to him.
Prior to the time the case was called for trial, Mrs. Willis informed appellant's counsel that she intended to testify that she shot herself and this information was communicated to the district attorney. Nevertheless, she was placed on the stand as a witness for the State and, when she testified that she shot herself, the district attorney sought to lay the foundation for her impeachment, claiming that she was a hostile witness as defined by R.S. 15:487. To this, defense counsel objected on the ground that the district attorney was not taken by surprise. The objection was overruled and, thereupon, the State questioned Mrs. Willis concerning certain prior inconsistent statements she had made soon after the shooting. She denied having made some of these statements and, as to the others, said that she could not remember. Then the State called to the stand, over defense counsel's objection, those witnesses (a doctor, police officer, deputy sheriff, her 17-year-old brother-in-law, Walter Willis, Jr. and her husband) to whom the alleged inconsistent statements were made and they testified substantially as appears below. 1
The contention of appellant that the judge erred in allowing the State to impeach Mrs. Willis, as the district attorney was not surprised by her testimony, is not tenable. R.S. 15:487 permits the impeachment of one's own witness by evidence of prior contradictory statements 'if taken by surprise by the testimony of such witness or * * * the witness show hostility toward him'. Therefore, surprise need not be shown where the witness is hostile. State v. Williams, 185 La. 849, 171 So. 52.
Counsel argues that hostility can only be established by the demeanor of the witness on the stand and that no animosity on the part of Mrs. Willis appears in this case. But it is not necessary to show a belligerent or biased attitude in giving testimony in order to prove that a witness is hostile. It suffices to show that the witness' interest is on the side of the accused to such an extent that he or she is unlikely to give a true account of the transaction. Here, the hostility of Mrs. Willis to the prosecution is fairly evident from her previous illicit relationship with appellant. State v. Leahy, 175 La. 659, 144 So. 138.
On the other hand, we think it plain that the judge erred in admitting the hearsay testimony of the several witnesses, who testified as to prior contradictory statements of Mrs. Willis, as evidence of appellant's guilt and he should have specially instructed the jury to refrain from considering it save for impeachment purposes.
It is a legal principle, well recognized in our jurisprudence, that, when impeaching evidence is received, it becomes the duty of the judge to caution the jury that such evidence should not be considered as proof of defendant's guilt. State v. Reed, 49 La.Ann. 704, 21 So. 732; State v. Paul, 203 La. 1033, 14 So.2d 826 and State v. Rocco, 222 La. 177, 62 So.2d 265.
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State v. Thompson
...extent that he or she is unlikely to give a true account of the transaction. State v. Welch, 368 So.2d 965 (La.1979); State v. Willis, 241 La. 796, 131 So.2d 792 (1961). Thompson has made no such showing of hostility, nor does the record reveal any hostility toward The true gist of the abov......
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State v. Ray
...Under this statute, impeachment is proper either when the State is surprised or when the witness proves hostile. State v. Willis, 241 La. 796, 131 So.2d 792 (1961); State v. Williams, 185 La. 849, 171 So. 52 (1936); 22 La.L.Rev. The record discloses that the witness was evasive and extremel......
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State v. Williams
...(excited utterances) and non-spontaneous narration after the event, with the latter being inadmissible as hearsay. State v. Willis, 241 La. 796, 131 So.2d 792 (1961); State v. Nash, 169 La. 947, 126 So. 434 (1929); State v. Bussey, 162 La. 394, 110 So. 626 (1926); State v. Watson, 159 La. 7......
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State v. Smith
... ... Kaufman, 304 So.2d 300 (La.1974); State v. Ray, 259 La. 105, 249 So.2d 540 (1971); State v. Willis, 241 La. 796, 131 So.2d 792 (1961); (2) whether there was an introduction of inadmissible "other crimes" evidence during the testimony of Earl Smith's neighbor, see State v. Haarala, 398 So.2d 1093 (La.1981); State v. Monroe, 364 So.2d 570 (La.1978); State v. Sutfield, 354 So.2d 1334 ... ...