State v. Webb

By the WHOLE COURT.

THOMPSON, J.

The defendant was convicted of murder with a qualified verdict, and from a sentence to imprisonment at hard labor for life prosecutes this appeal. There are twenty-one bills of exception complaining of errors committed by the trial judge during the progress of the trial,

Bills 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, and 13.

These several bills are directed at the ruling of the court in sustaining objections to certain questions propounded to different jurors on their voir dire, touching their opinion and belief on the law of self-defense. The following is one of the questions propounded:

• "Mr. Calloway, do you believe that a man has the right to defend himself when he is or may be suddenly or violently attacked?”

The ruling of the court in not permitting the question to be answered was entirely correct. It is not permissible for counsel to question jurors as to their individual opinion or belief as to what the law is or ought to be in a given case or under certain circumstances. It is true that the Constitution declares that jurors are the judges of both the law and the facts in a criminal case on the question of the guilt or innocence of the accused party, but this is true with respect to the law only in the sense that they are to accept the law as given to them in the charge by the court and apply it to the facts of the particular case.

“Jurors are not supposed to know the law, and are not incompetent because their crude opinions may not be in accord with the views of jurists and text-writers.” State v. Perioux, 107 La. 601, 31 South. 1016; State v. Willie, 130 La. 454, 58 South. 147.

The syllabus by the court in the first case above noted is:

“Jurors should not be examined as to their opinions on questions of law, such as the burden of proof, reasonable doubt, etc.”

Bill 5.

This bill was reserved to the refusal of the court to permit a juror to answer the following question:

“Would you convict a man on circumstantial evidence alone?”

We fail to see wherein the accused has any interest in testing the views of the juror on circumstantial evidence. If the juror answered in the affirmative, he would Jaut be obeying the requirement of the law, and this would afford the defendant no cause for challenge. On the other hand, if the juror was opposed to convicting on circumstantial evidence alone, the right of challenge for cause would rest with the state. At all events, we ■fail to see wherein the accused has suffered any injury or has been deprived of any substantial legal right by the ruling of the court.

Bill 12.

This bill recites that the clerk and sheriff were ordered by the court to draw forty tales jurors from the tales jury box; that counsel made timely objection to the drawing and based his objection upon the fact “that the box from which the names were drawn was not signed, locked, sealed, and delivered and certified to by the 'clerk of court and the jury commissioners.” The judge states that the clerk alone was ordered to draw the tales jurors from the box, and he is confirmed by the entry on the minutes. The judge further states in his per curiam:

“I had examined the box before it was opened and at the time the objection was made. The box was not only securely locked but also sealed, and there was not only no evidence but no intimation to the contrary other than the statement used by the attorney in making the objection. The remaining objection contained in this bill is that the box was not properly certified to by the clerk and jury commissioners. A pieoe of paper with which the box was sealed (in addition to being looked) bore tbe following inscription;

“ ‘Signed, locked, sealed, and delivered to tbe clerk of court as custodian thereof this the 16th day of November, 1923.

“ ‘T. E. Newton.

“ ‘J. C. Rockett.

“ ‘J. M. Henton.

“ ‘Jas. A. Dean.

“ ‘Witnesses:

“ ‘W. S. Pickens.

“ ‘H. B. Smith.’ ”

We find no error in the action of the court. Act 182 of 1914 only requires that the tales jury box be locked. State v. Bagwell, 154 La. 980, 98 South. 549.

Bill 14.

The basis of this bill is a challenge of the competency of the juror Grafton because his name appears in the jury list as a resident of ward 8, whereas he testified on his voir dire that he lived in ward 12. The judge’s statement shows that the juror once voted at Shilo before a new precinct was created, and that since that time he had voted at Bernice; that some call it ward 12 and some ward 8. The judge understood that the Shilo end of the ward is known as justice ward S and the Bernice end of the ward as justice ward 12. The two comprise one and the same police jury ward.

A person to be a competent juror need not be an elector. It is sufficient that he has resided in the parish in which the court is held at least one year. Act 135 of 1898; State v. Willie, 130 La. 454, 58 South. 147. No claim is made that Grafton had not resided in the parish for as much as one year immediately before being called to serve as a juror.

Bill 15.

This bill complains at the failure of the court to sustain a challenge of cause made against the juror E. D. Antley. The juror testified that he sometimes signed his name as D. P. Antley and at other times as E. D. Antley. His correct name was1 Freeman David Antley and he appeared on the jury list as F. D. Antley. It is not pretended that there was any mistake as to the identity of the person being the one drawn and intended to be drawn as a juror. There was no other F. D. Antley in that ward or community.

Bill 16.

A state witness was asked in cross-examination the following question:

“I will ask you if you didn’t hear Ira Black say that night that when he got to the body of Mr. Holloway that he found an open knife by Mr. Holloway’s side?”

An objection that the evidence sought was irrelevant, hearsay, and not a part of the res gestae was sustained. The judge states that—

“The question could not have been for the purpose of impeachment since Ira Black, at that time had not been called as a witness. * * * It was in no manner connected with the difficulty, and was at a time five or six hours after the killing. The question called for the rankest sort of hearsay.”

We approve the ruling. The excluded evidence formed no part of the res gestse, and was purely hearsay.

Bill 17.

The defendant was sworn and testified in his own behalf. On cross-examination he was asked by the state why he had not left Mr. Holloway’s farm at the time of the alleged insult to his wife. On redirect examination he was asked by his counsel if he had any means or money; the purpose of the testimony being to show that defendant was not in a position financially to leave the farm. An objection of irrelevency interposed by the state was sustained.

The general rule is that incriminating evidence introduced by the state is always open to rebuttal and explanation by the accused, and such rebuttal or explanatory evidence is not inadmissible on the score of being irrelevant.

In this case, however, we cannot see what possible pertinence or bearing the evidence sought to be' introduced could have had. The defendant had the legal right to-•remain on the place he was cropping on under the share system, and was not compelled to leave because of insult offered his wife.

However, if there was error in excluding the evidence, the defendant suffered no injury, as we gather from counsel’s brief that the defendant in answer to the state’s ■question stated that he did not know of any reason why he did not leave the place.

Bill 18.

This bill shows that the wife of the defendant was called to testify by the state, and .was asked the following question:

“What statement did he make to you” (referring to her husband) “with reference to the deceased having visited your house?”

Over the objection of the counsel for the accused that the conversation sought to be introduced was between husband and wife and under the law was a privileged communication, and inadmissible in evidence against the accused, and that the evidence was not in rebuttal, the witness was permitted to state the conversation, and answered the question as follows:

“He said that he came there on Monday night and slammed the door against the foot of his bed, and I told him-not to do that as he would wake him up, and said Mr. Holloway said with an oath that he couldn’t wake the son of a bitch and that I got up and walked out with him on the porch.”

The judge in his per curiam gave as a reason for admitting the testimony the following:

“Mrs. Abner Webb was used throughout as a material witness for the state. The defendant made no objection to her being sworn; she not only made no objection, but appeared rather hostile to the defendant. The testimony was not only in direct rebuttal of the testimony for the defendant, but was admissible for the purpose of impeaching his testimony.”

The ruling of the trial judge was manifestly erroneous, and it must be assumed, under the circumstances, was greatly prejudicial to the rights of the defendant.

Act 157 of 1916 declares that the competent witness in any proceeding, civil or criminal, shall be a person of proper understanding. Under the express terms of this statute the wife was made a competent witness for or against her husband; the exercise of the privilege being left entirely to her own inclination and discretion. The husband was powerless under the terms of the statute to prevent his wife from testifying against him on any matters not expressly prohibited by the law. But because of the competency of the wife as a witness, and because she chose to assume a hostile attitude towards her husband, and because her husband did not object to her being sworn as a witness, it does not follow that the wife could be permitted to give illegal, incompetent, and irrelevant testimony, even though such testimony was strictly in rebuttal and would have been otherwise admissible as impeaching testimony.

The statute we have referred to, which makes the husband and wife competent witnesses for or against each other at their option, in unmistakable language declares that private conversations between husband and wife shall be privileged. The statute makes no exception, modification, or reservation, but includes in its terms all private conversations had between husband and wife of whatever nature and character. Nor does the statute take into consideration the mental attitude of the spouse who offers to divulge, to the prejudice of the other spouse, private and confidential conversations had between them.

If the question as to whether a private conversation between husband and wife is or is not privileged is to be determined by their relations toward each other, then the prohibitive provision of the statute may as well be stricken out, for it becomes a dead letter. The one who wants to incriminate the other by reproducing their private conversations can always assume the required hostile frame of mind.

In A. & E. E. of Law, vol. 23, p. 94, it is stated:

“Statutes creating this privilege do not affect the competency of husband and wife as witnesses for each other, but they may testify as to any matter whatever of which they have knowledge, except as to admissions and conversations during the existence of the mariiage relation. It is not necessary that there should be any injunction of secrecy on the part of the spouse who makes the communication.”

In discussing the question of private conversations between husband and wife as being privileged and inadmissible as evidence in a criminal charge against one of the spouses, the Supreme Court of the United States, in Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. 165, 34 L. Ed. 762, said:

“This rule is founded upon the deepest and soundest principles of our nature, principles which have grown out of those domestic relations that constitute the basis of civil society, and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down and impair the great principles which protect the sanctities of husband and wife would be to destroy the best solace of human existence.”

There is nothing in the record to show that the testimony given by the wife was other than what it purports to be — a private conversation between husband and wife. If there were any other persons present at the time the statement is alleged to have been made by the husband to the wife, the record fails to show the fact. The presumption is that no other person was present, otherwise the state would have produced such third person. <

We are constrained to disagree with the ruling of our learned brother of the district court. If. the conversation between the husband and wife in the instant case can be used against the husband through the testimony of the wife, then where is the line to be drawn between conversations that are privileged and those that are not. There can be no line of demarcation, and a confession made by the husband to the wife in confidence can be made the basis for a criminal charge against the husband at the whim and caprice of the wife. Such a principle is unthinkable and abhorrent to all sense and appreciation of the holy and sacred relations of husband and wife.

Bills 19, 20, and 21.

These three bills were reserved to the refusal of the judge to give certain requested special charges. As abstract propositions of law there may not have been any serious legal objection to the charges, but we find from the judge’s statement that the counsel for the defendant stated:

“I think the requested charges have possibly been covered in the general charge, but we except to the ruling of the court to preserve our rights.”

The special charges have been considered in connection with the general charge, and we find no error in the court’s refusal to give them. While the exact language of the special charges was not used in the general charge the legal principles covered were practically the same.

Por the error committed, as stated in bill of exception No. 18, the conviction and sentence appealed from is annulled and set aside, and the case is remanded to the district court to be proceeded with according to law.

BRUNOT and LECHE, XL, dissent.