State v. Williams , 230 La. 1059 ( 1956 )

TONDER, Justice.

•The defendant has appealed from his •conviction and sentence to serve seven and one-half years in the State Penitentiary under a bill of information charging him with unlawfully possessing, selling, and delivering a narcotic drug, to wit: Marijuana in violation of LSA-R.S. 40:962.

The defendant is relying (for a reversal of the conviction and sentence) on fifty-four bills of exception taken to the rulings of the trial court during the course of the trial. After an examination of these bills, we find that Bills of Exception No. 25 and No. 40 are meritorious. Without reciting the other bills or discussing them, it is sufficient to say that the conviction and sentence must be set aside because of the trial judge’s erroneous rulings set forth in Bills of Exception Nos. 25 and 40.

It appears in Bill of Exception No. 25 that during the examination in chief of I. H. Otwell, a State witness, the following question was propounded to him by the State: “Can you identify the writing on the envelope?” In reply, the witness read to the jury an inscription on the envelope, viz.: “One marijuana cigarette given to me for replacement of two ‘turkeys’ sold to me * * whereupon counsel for the defendant interrupted and objected to the witness reading an inscription which had been written on the envelope by the witness at a time when he was alone in a tourist court and which seeks to incriminate the defendant. The objection was based on the ground that the evidence was immaterial, irrelevant, self-serving and an ex parte statement by the witness. The objection was overruled by the trial court, whereupon 'counsel for the defendant reserved a formal bill of exception. The witness then read the following inscription written by him on the envelope at the tourist court, viz.: “One marijuana cigarette given to me for replacement of two ‘turkeys’ sold to me on 3-18-55. This cigarette given to me in 1951 Buick —55 La. 510-047 at 1 P.M. 3-20-55. These came from C. M. ‘Cooker’. I. H. Otwell.”

It appears that this envelope was latex introduced in evidence at State Exhibit 2 and this forms the basis for Bill of Exception No. 40. This envelope was subsequently handed to and examined by each and every juror. The trial judge stated that the point raised is different from that raised in State v. Dore, 227 La. 282, 79 So.2d 309. We cannot agree with this conclusion for the reason-that the holding in the Dore case is decisive of the issue raised herein. In the Dore case the written and verbal extrajudicial statements of a prosecuting witness were held to be hearsay, not original evidence, but emanating from a party interested and are never admissible except as a part of the res gestae. It was pointed out therein that a witness may use a memorandum to refresh his memory and that the introduction in evidence of the memorandum or written statement could serve no other purpose than to bolster as an attempted corroboration the testimony of that witness and, therefore, it was clearly inadmissible. Furthermore, as pointed out in the Dore case, the harm herein was further aggravated by the fact that the envelope was subsequently handed to and examined by each and every juror.

For the reasons assigned, the conviction and sentence are annulled and set aside and the case is remanded for a new trial, in accordance with law.

HAWTHORNE, J., dissents.