State v. Mulrolland

16 La. Ann. 376

• Court: Supreme Court of Louisiana
• Decided: December 15, 1861
• Status: Published

Opinions

Vooehies, J.

The prisoner was sentenced to death for the crime of murder.

On appeal he asks the reversal of this judgment on several grounds, which are brought up by bills of exception.

1. The Attorney General, in the court below, propounded to a witness the foEowing question:

“What conversation took place between the prisoner and said Condon as to the manner in which the said Condon received his wound, and by whom inflicted? ”

The party killed was an individual by the name of W. O. Somers; and Condon, the quarter-master of a steamship, was wounded whilst attempting to effect the arrest of the prisoner. The latter objected to the question above on the grounds:

1st. 1 ‘ That it was hearsay and irrelevant testimony, raising a collateral issue and tending to create a prejudice in the minds of the jurors against the prisoner. ”

2d. “That the stabbing of Condon was a distinct felony.”

The Attorney General stated that his object was two-fold, — to prove a tacit confession on the part of the prisoner, and to show malice; that for that purpose, and the evidence being part of the res gestm, the objections raised against its inadmissibility, were without foundation.

The District Judge allowed the question to be propounded; hut, the .answer being deemed unsatisfactory, the counsel for the State on the spot requested the Court to inform the jury that the answer was not properly before them. This was complied with; and the Judge, in his' ■charge, subsequently reiterated the instruction.

We think the question was a proper one, the District Judge being sat-* defied that the matter to be elicited by it formed part of-the res gestee* Furthermore, although the rule be that evidence of the commission of a felony distinct from the one charged in the indictment, is inadmissible, yet an exception lies when the purpose is to prove that the prisoner was actuated by malice. 3 An. 612, State v. Patza; 12 An. 382, State v. Rohfrischt.

When the commission of both offences are closely linked or connected, as, for instance, when upon the consummation of the first, and whilst being hotly pursued, the prisoner, to avoid capture, commits the second offence, — it is difficult to perceive why evidence of the whole transaction should not be legal, notwithstanding two distinct felonies have thus been perpetrated. Roscoe, Evid., p. 82.

The objection that Condon’s declaration was merely hearsay, is of no weight; for the question related to a conversation between him and the prisoner. I Greenleaf, ?¿ 199; State v. Johnston, 10 An. 456.

2. Another bill of exception raises the question of the legality of ad: mitting the testimony given by' a witness at the inquest held by the Coroner, for the purpose of discrediting him before the jury.

The defendant’s counsel bases his objection on the ground that the accused is not present when the inquest is held, and that he has no opportunity to cross-examine the witnesses. If the credit of a witness may be impeached by proof that he has made statements out of court, contrary to what he has testified at the trial, there can be no difficulty in admitting, for that purposo, the examination reduced to writing and subscribed by witnesses interrogated on the inquest. Such examination, however, is not evidence against the prisoner, but is intended merely to discredit the witness, who at the trial, and previously, may have made contradictory statements, in such matters as are relevant to the issue. Greenleaf, Evid. $ 462. Hence it is not necessary that the prisoner should have had an opportunity of cross-examining the witness.

3. The last bill of exception presents the question “whether a police officer has the right to ask a qitestion of a prisoner in his custody.”

In their brief the defendant’s counsel state: “This evidence of the police officer, having the prisoner in charge and bringing him to jail, ought not to have been received, without the State having first negatived any promise or inducement held out by the police officer; before receiving the admission of the prisoner in evidence, the Judge must require evidence that the confession is free and voluntary.”

We will here observe that nothing of the kind is to be found in the record. The statement of the District Judge, which stands in lieu of the lost bill of exception, does not even allude to the objection that the admission was not free and voluntary; this ground of complaint consequently is not before the Court.

Upon the question properly before us the authorities are clear. “A confession, says Roscoe, p. 45, is admissible in evidence, where it has been elicited by questions put by a person having no authority. Wilde’s Moo. C. C. 452, — ante id. 40; so where the party asking them is a police officer.”

The counsel for the accused states in his brief that the State witness McMullen committed suicide on the very day that sentence of death was passed on the prisoner; and, in this connection, he makes a strong appeal to this court in behalf of his client. This circumstance may have its weight with the Executive, with whom is vested the pardoning prerogative; but it is of no avail before a tribunal, whoso jurisdiction in criminal matters is limited by the Constitution to questions of law.

Judgment affirmed.