State v. Nash , 169 La. 947 ( 1929 )

On Rehearing. The defendant was indicted for the murder of one Irvin Franklin. He was found guilty "without capital punishment," and sentenced to imprisonment for life. His appeal presented nine bills of exception, all of which were found without merit in the opinion herein first handed down, and his conviction and sentence were accordingly affirmed.

He applied for a rehearing which was granted; and the case is now before us again.

In his said application he complains only of our ruling on bills No. 3, 4, 6, and 7, which are all of the same nature, and of our ruling on bill No. 5, which is of a different tenor. Thus, in his brief in support of his application for rehearing, he says: "The errors complained of on which defendant seeks a rehearing may be grouped into two for the sake of brevity, viz.: Failure to admit statements made by Portee under the plea of self defense, and secondly, failure to permit the sheriff to relate the full conversation of the defendant upon his surrender." As our rulings on the other bills, Nos. 1, 2, 8, and 9, are not complained of, and are clearly correct, we will not revert to them, but will confine ourselves to the matter complained of on the application for rehearing.

I. The contention of the defendant was that he had a difficulty with one Portee, who had threatened him with a pistol; that defendant had left the place where the difficulty occurred, to seek for the town marshal; that not finding the marshal, he borrowed a shotgun for his own protection against said Portee who had threatened to take his life, and returned to the building in which the difficulty had occurred and in which he (the defendant) had his sleeping apartment; that whilst seeking his room he inadvertently came upon said Portee, who again threatened him with a pistol; whereupon, in order to save his own life, he fired at said Portee, wounding him only, but accidentally shooting and killing the deceased, a bystander. II. As to bills Nos. 3, 4, 6, and 7: Portee was summoned by the state, but could not be found. He was therefore not a witness in the case, and the matter complained of in these bills is not related to any effort to contradict or impeach Portee, but was an effort to introduce as original evidence, in support of the self defense, certain declarations made by said Portee from half an hour to 12 hours or more after the killing.

These statements of Portee were objected to by the state, on the ground that they were no part of the res gestæ, and to admit them would be to admit hearsay evidence.

The original opinion herein sufficiently shows that the declarations of Portee, thus excluded, could not be part of the res gestæ.

Nor can such statements be received on the ground that they were admissions made by said Portee, against his own interest, and tending to show that said Portee had attacked the defendant, and that defendant had only shot in self-defense.

Even if said admissions had been made by the deceased himself, they would not have been admissible, unless made as dying declarations, or constituting part of the res gestæ. State v. Fletcher, 127 La. 602, 53 So. 877. And much less can such statements when made by other parties be admitted; they are mere hearsay, even though they tend to exculpate the accused and incriminate the person making them. State v. West, 45 La. Ann. 14, 12 So. 7; State v. Mitchell Young, 107 La. 618, 31 So. 993; State v. Jones, 127 La. 694, 53 So. 959.

III. As to bill of exception No. 5: The defendant surrendered himself the day after the killing. So far as we can see by the record, the only evidence that in the meanwhile the defendant had fled is the testimony of the sheriff that the defendant had told him that he had left town on the night of the killing and had gone to an adjoining parish before surrendering. But whether there was or was not any other evidence to that effect, the fact remains that this admission was introduced to prove flight and the presumption of guilt resulting therefrom.

The sheriff was thereupon asked by the counsel for defendant: "Did Sonny (Almond) Nash tell you why he left town that night?" And again: "I will ask you if at the same time the defendant did not tell you that the reason he left town was that when he found out he had actually killed one of his best friends it unnerved him, and in such suspense he did not know what to do, and as soon as he got out of town a little while and thought it out he immediately returned and surrendered?"

This was objected to by the state and excluded by the trial judge on the ground that it was irrelevant and immaterial, no part of the res gestæ, and merely a self-serving declaration.

We think that the ruling was erroneous. The evidence was indeed no part of the res gestæ, but it was relevant and material, since it was competent to explain the flight.

But whilst the alleged declaration of defendant, if made at some other time would be a mere self-serving declaration, nevertheless, the declaration here made was part of, and immediately connected with, an admission sought to be used against defendant. And being such, the defendant was entitled to have the admission laid before the jury in its entirety. Such was the law even prior to the adoption of the Code of Criminal Procedure (Act No. 2 of 1928). State v. Thompson, 116 La. 829, 41 So. 107. But since the adoption of that code the rule is now statutory, article 450 of said code reading as follows:

"Art. 450. Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford."

We adhere to our ruling on Bills 3, 4, 6, and 7. But we now think that the ruling complained of in Bill No. 5 should have been reversed.

Decree. It is therefore ordered that verdict and sentence herein appealed from be now reversed and set aside and the case remanded to the court below for a new trial according to law.

O'NIELL, C.J., concurs in the decree, but not in the ruling on bills Nos. 3, 4, 6, and 7.