State v. Wilson

• Decision Date: 17 June 1929
• Docket Number: 29964
• Citation: 123 So. 614,168 La. 903
• Court: Louisiana Supreme Court
• Parties: STATE v. WILSON

123 So. 614

168 La. 903

STATE v. WILSON

No. 29964

Supreme Court of Louisiana

June 17, 1929

Appeal from Twenty-Second District Court, Parish of St. Tammany Prentiss B. Carter, Judge.

Jules Wilson was convicted of cutting with intent to kill, and he appeals.

Affirmed.

Miller & Heintz, of Covington, for appellant.

Percy Saint, Atty. Gen., C. S. Frederick, Dist. Atty., of Covington, E. R. Schowalter, of New Orleans (Robert D. Jones of Franklinton, and Harvey E. Ellis, of Covington, of counsel), for the State.

LAND J. O'NIELL, C. J., OVERTON and ST. PAUL, JJ., dissent.

OPINION

LAND, J.

Under an indictment for cutting and thrusting one George Kennedy with a knife, with intent to kill and murder, the defendant was convicted of cutting with intent to kill, and was sentenced to imprisonment in the state penitentiary at hard labor for a period of not less than one year nor more than three years.

The errors complained of in the trial in the lower court are embodied in seven bills of exceptions.

Bill No. 1.

On direct examination, the district attorney propounded to a state witness the following questions: "Were they drinking then?" and, "What were they doing?" Objections made to the evidence sought to be elicited on the ground that it was irrelevant, immaterial, and too remote were overruled by the trial judge.

It appears from the note of evidence that the district attorney attempted to prove that the defendant, in company with another party, was drinking at his home at 9 o'clock, and that the difficulty took place at 1 o'clock.

A bill of exceptions to the admissibility of evidence should show its materiality, relevancy, reception, and probable injury to the accused. State v. Woods, 112 La. 617, 36 So. 626.

A bill to the admission of certain evidence as irrelevant should adduce such reasons and circumstances as show that the ruling was incorrect, and should show how the accused was injured by the reception of such irrelevant evidence. State v. Johnson, 36 La.Ann. 852.

The bill fails entirely to advise this court wherein the ruling of the judge a quo was erroneous, and we are not in a position to say that the ruling complained of caused injury, and, unless injury is shown, the verdict cannot be set aside. State v. Campbell, 134 La. 828, 64 So. 765.

Bills Nos. 2, 3, 4, and 5.

As all of these bills deal with the question, directly or indirectly, of the right of defendant to test the bias or feeling against him of the prosecuting witness, George Kennedy, we shall discuss the four bills in globo.

The district attorney objected to the following questions propounded on cross-examination by counsel for defendant to the prosecuting witness, George Kennedy: "Have you any hard feeling against the defendant, Jules Wilson?" and, "Were you present at a certain time and place when Cube Kennedy cut a man by the name of Eli Singletary?"

Before these objections to the admission of the evidence were sustained by the trial judge, the defendant offered to produce Singletary and to prove by him that, at the time he was cut by Cube Kennedy, George Kennedy was present and made the remark: "Cube, you got one of the Wilsons and Singletarys, and I am going to get one of the Wilsons, and I mean Jules Wilson," the defendant in this case.

Defendant also offered to prove by the same witness that George Kennedy, the prosecuting witness, declared in the presence of other persons in a restaurant in Covington as Jules Wilson, the defendant, walked out of the restaurant: "I am going to kill that s of a b some day."

Defendant also offered to prove by Cal Parker and Oscar Parker that George Kennedy, the chief prosecuting witness, came to the home of Cal Parker looking for the defendant, Jules Wilson, and made a statement to defendant's brother, Gula Wilson, that "he had come there to get Jules Wilson," and that, at that time and place, they removed from the person of George Kennedy a pistol.

Defendant also offered to prove that, at the same time and place, the hostility of George Kennedy was such that he informed the brother of defendant, Gula Wilson, that he could take up the fight of defendant, and that George Kennedy and Gula Wilson retired from the home and engaged in a difficulty.

The following reasons for refusing to admit the above testimony on behalf of defendant are given by the trial judge in his per curiam to bill No. 2: "The defendant in this case Jules Wilson, is charged by a bill of indictment returned by the grand jury with the crime of cutting with intent to kill and murder one George Kennedy, being the witness on the stand. The question propounded by counsel to the witness when tendered for cross-examination under the guise of seeking to test his credibility is an attempt to introduce previous threats indirectly. No foundation has been laid for introduction of previous threats, either communicated or uncommunicated; not a scintilla of evidence has been introduced upon the trial of this case to show that...