State v. Patterson

The defendant was charged, arraigned, tried, and convicted of the crime of carnal knowledge. He was sentenced to an indeterminate term, at hard labor, in the Louisiana State Penitentiary for not less than two nor more than three years, and he appealed.

There are five bills of exceptions in the record. We have carefully considered all of them. We find no merit in bills Nos. 1, 2, 3, and 4, but will briefly direct attention to the error in each one.

Bill No. 1 was reserved to the overruling of a motion for a continuance. The motion is based upon the absence of a witness for the defense upon whom no service was made because the witness was temporarily in the state of Texas. The record discloses that a hearing was had on the motion pursuant to the provisions of article 323 of the Code of Criminal Procedure. At this hearing no evidence was offered to show that the facts the witness would testify to, if present, could not be proved by other witnesses in attendance upon the court. On the contrary, the defendant on cross-examination admitted that two other witnesses, present in court, could testify to the same facts. The judge in his per curiam says that, on the trial, four witnesses did actually so testify. Article 323 of the Code of Criminal Procedure was not complied with; neither was the jurisprudence prior to the adoption of the Criminal Code as it is announced in State v. Chevallier, 36 La. Ann. 81, State v. Hillstock, 45 La. Ann. 298, 12 So. 352, and State v. Carter, 51 La. Ann. 442, 25 So. 385.

Bill No. 2 was reserved to the overruling of defendant's verbal objection to going to trial because of the absence of one of his witnesses upon whom he had obtained personal service. No application for a continuance was made. The defendant merely objected to going to trial, and says in the bill:

"The Court, without any showing on the part of the State, or from any other source, ordered the defendant to trial without the presence of the witness."

The statement in the bill that no showing was made by the state is erroneous. The judge in his per curiam says:

"When the case was called, and this witness found to have been served and not present, I ascertained in open court from the officers that the witness was a fugitive from justice."

A mere verbal objection to going to trial presents nothing for review. Defendant should have made a formal application for a continuance in the manner and form prescribed by articles 321 and 322 of the Code of Criminal Procedure.

Bill No. 3 was reserved to the refusal of the court to permit the defendant to inquire into the chastity of the prosecuting witness at a time prior to the commission of the offense with which the accused was charged. Beginning on page 33 of the transcript the prosecuting witness being on cross-examination, we find the following:

"Q. I am going to ask you this question for the purpose of testing your credibility. Had you, prior to having intercourse with Harvey Patterson, had intercourse with any one? A. No.

"Q. Do you know James Franklin? A. Yes.

"Q. Do you know Earnest Teaster? A. Yes.

"Q. Have you ever had anything to do with him prior to that time? A. No sir.

"By the State: I object to this line of testimony as being irrelevant and immaterial.

"By the Court: The objection is sustained.

"By Mr. Pickrel: We except to the ruling of the Court and reserve a bill. I am asking these questions for the purpose of testing the witnesses' credibility."

The answers to the foregoing questions went to the jury without objection, and there was no request that the jury be instructed with respect to them. In the per curiam to this bill, the judge correctly says that the testimony is not admissible for the purpose for which it was offered, viz., to test the credibility of the witness, and cites as authority for his view, State v. Johnson, 141 La. 775, 75 So. 678. He might have added State v. Hobgood, 46 La. Ann. 855, 15 So. 406; State v. Baudoin, 115 La. 837, 40 So. 239; State v. Romero, 117 La. 1003, 42 So. 482. "The relevancy of evidence must be determined by the purpose for which it is offered. * * *" Article 442, Code Cr.Proc.

Bill No. 4 was reserved to the refusal of the judge to permit the defendant, over the objection of the state, to ascertain from the prosecuting witness whether or not she had sexual relations with the defendant during the week following the commission of the offense with which the accused was charged. The court sustained the objection, and excluded the testimony upon the ground that it was irrelevant and immaterial. We see no error in the ruling. Coming events cast their shadows before, but after events cannot obliterate crime.

Bill No. 5. This bill was reserved to the court's permitting the district attorney, over the objection of the defendant, to read to the jury certain parts of the testimony previously given by the state witnesses in a civil suit. In the per curiam to this bill the judge says:

"The State offered all the evidence of the witnesses taken in a civil case, but I permitted him to introduce and read to the jury only those parts of the evidence in the civil case that were asked about by counsel for the defendant. * * *"

In this case the witnesses were present in court, they were examined in chief by the state, but were not re-examined upon the testimony they gave on cross-examination in response to questions propounded to them by the defendant's counsel. The common-law rule and our Constitution require that, in the trial of criminal cases, the defendant must be confronted with the witnesses against him, and the jurisprudence of every jurisdiction with which we are familiar requires that the testimony be given by the witnesses personally and orally before the tribunal that is to pronounce the verdict. When the second trial is for the same offense, and a witness who testified on the first trial is dead, insane, permanently absent from the state, or too sick to be brought to court at a subsequent time, the rule is relaxed. The rule is so well recognized that we abstain from quoting from any of the authorities, but will merely cite three of them, viz., Wharton's Crim. Ev. vol. 1, p. 406, par. 228; State v. Banks,106 La. 480, 31 So. 53; State v. Britton, 131 La. 877, 60 So. 379. The overruling of the defendant's objection to the admission, as evidence in this case, of parts of the testimony previously given by the state's witnesses in a civil suit was contrary to law and prejudicial to the accused.

For the reasons stated, the verdict and sentence are avoided and set aside, and this case is remanded for trial according to law and the views herein expressed.

O'NIELL, C.J., concurs, except as to bill No. 1.

On Rehearing.