State v. Lewis , 44 La. Ann. 958 ( 1892 )

The opinion of the court was delivered by

Fenner, J.

The assignment of errors on the face of the record filed by counsel for appellant has no merit.

The record affirmatively shows that defendant was personally present when the sentence was passed.

His presence was not essential when his motion for new trial was overruled. 27 An. 375; 32 An. 558; 33 An. 1408; 38 An. 459.

Neither was it essential for the record to show that he was asked if he had anything to say why sentence should not be passed. 27 An. 393; 30 An. 326; 33 An. 1253; Wharton Or. PL, Sec. 906; 1 Bishop Cr. Pr., Sec. 1293.

There are several bills of exception, however, which present charges of serious error.

Erom the first bili it appears that Jesse Madden, a brother of the deceased, and a leading State witness, had been asked, on cross-examination, the following question as stated by the judge: “Did you not say on the gallery of Louis’ store-house, to or in the presence of W. C. Bond, and shortly after the shooting, that your brother Joe was in fault or was in the wrong, or words to that effect, and that you were glad you saw the difficulty?” To which he answered, “No.” Subsequently, defendantoffered W. O. Bond as a witness and asked him “if Jesse Madden did not tell him, just out of the room, on the gallery, immediately after the shooting, that he was glad he saw the fight, that he did not believe his brother was hit, although he was in fault?”

The question was based on the double purpose of impeaching and contradicting the witness, Madden, and also of proving a part of the res gestee.

The State objected on the grounds that the evidence did not belong to the res gestae and that it was not admissible for the purpose of contradicting the witness because the proper basis had not been laid.

We pass by the question as to whether the evidence belonged to the res gestee, about which there might be doubt. But certainly, as impeaching testimony, the foundation for its introduction had been laid in full compliance with the rule on that subject. Comparison of the two questions which we have copied shows conclusively a substantial identity between the statement which he denied having made and that which the defence offered to prove by the impeaching witness that he had made, with all necessary particulars of time, place and circumstances. The judge does not deny the sufficiency of the foundation, but sustained the objection on a ground not urged by the prosecution, viz.: “ because the statement was not material to the issue, being merely the witness’ opinion of the merits of the affair.” We can not agree with the. learned judge. The statement might have had a very material and vital influence in the case, and, at all events, the defendant was clearly entitled to the evidence as tending to impeach the credibility of the witness, and as lessening the weight of his testimony. Witness was a brother of the deceased, had seen the whole difficulty, and was a leading witness for the State, and proof that he had made the statement which he had denied, if believed by the jury, would surely tend to weaken his evidence against the defendant.

The cases cited by the State from 34 An. 346 and 35 An. 9 to the effect that newly discovered evidence tending only to impeach a State witness is no ground for new trial, rest on entirely different principles, and obviously have no application here.

This is sufficient to remand the case, and we need not discuss other bills of exception which involve matters not likely to arise again, and, besides, do not strike us as very meritorious.

It is, therefore, adjudged and decreed that the verdict and sentence appealed from be annulled and set aside, and that the case be remanded to the lower court for further proceedings according to law.