State v. Kelly

262 So. 2d 501, 262 La. 143, 1972 La. LEXIS 5915

Opinions

PER CURIAM.

This is an appeal from a judgment convicting the appellant of the crime of armed robbery, and fixing his punishment at ten (10) years at hard labor in the State Penitentiary. La.R.S. 14:64. Appellant reserved and perfected five bills of exceptions.

Bills of exceptions numbers one, two, three and four, not argued in brief by counsel, do not contain any reversible errors.

By the fifth bill of exceptions, defense counsel contends that the ruling of the trial court, in permitting an interrogation which elicited testimony from the defendant that he had previously stabbed somebody, and in denying the motion for a mistrial based on the reference to this statement in rebuttal argument by the State was reversible error. We find otherwise.

While the question posed by the State to the defendant, “Did you ever stick anybody with a knife?”, may be improper, technically, as to form under the decision in State v. Perkins, 248 La. 293, 178 So.2d 255 (1965), because it does not refer to any conviction, neither was a bill of exceptions taken to the form of the question at the time it was made, hence the objection is considered waived. La.C.Cr.P. art. 841. It is true that an objection was made to a later question which referred to this line of questioning after another subject had been explored, but we do not consider it as timely as far as this evidence is concerned. See State v. Blankenship, 231 La. 993, 93 So.2d 533 (1957), and State v. Christiana, 249 La. 247, 185 So.2d 580 (1966).

The second premise of this bill consequently fails by this finding that the statement was properly admitted into evidence. La.C.Cr.P. art. 774, State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970).

Inasmuch as we find no infirmity in the trial court’s rulings, the conviction and sentence are affirmed.

BARHAM, J., dissents. TATE, J., dissents and assigns written reasons.