State v. Constanza , 157 La. 411 ( 1924 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Sam Constanza, M. Lee Mulcahy, and John Gallicio were charged with entering a dwelling house in the nighttime, with intent to steal, and with stealing $200 in currency, the property of Steve D'Asaro. When the evidence was concluded the prosecution was abandoned as to John Gallicio; the jury returned a verdict of guilty as charged as to the other two accused, and they were sentenced to imprisonment in the state penitentiary at hard labor for not less than four and one-half years nor more than five years. From this verdict and sentence they have appealed.

Appellants rely upon eight bills of exception.

Bill No. 1 was reserved to a remark made by Steve D'Asaro to the district attorney during the progress of the trial. The bill recites that while Salvador D'Asaro, a witness for the state, was on direct examination he was asked to tell the whole story. His answer, as it was interpreted, was as follows:

"They came in and they drew a pistol, and they put it to my stomach, and they told me to raise my hands."

At this time Steve D'Asaro, who was seated near the district attorney, remarked that "the interpreter is not repeating what the witness said." Counsel for defendants objected to this remark. The per curiam to this bill is as follows:

"There was some difficulty in securing an interpreter, and finally Henry Audoin, a deputy sheriff, was sworn as interpreter. He stated that he would do the best he could. While interpreting one of the witness's answers Steve D'Asaro, who was sitting near the district attorney, suggested to the district attorney that the interpreter was not correct. This was said in an ordinary tone of voice. The court at the time directed Steve D'Asaro to speak in a lower tone if he wished to again call the district attorney's attention to any matter and the court was of the opinion that no harm was done."

There is no merit in this bill. In State v. Wimby, 119 La. 139, 43 So. 984, 12 L.R.A. (N.S.) 98, 121 Am. St. Rep. 507, 12 Ann. Cas. 643, the court says:

"In State v. Renaud, 50 La. Ann. 662, 23 So. 894, the father of the deceased was sitting in the audience. The district attorney in the course of his address to the jury remarked: `What will you do with the accused?' The father exclaimed: `Put a rope around his neck.' The judge at once took the necessary steps to prevent the repetition of any such remarks in the court. The verdict was guilty of murder as charged, and the accused was sentenced to be hanged. The court refused to set aside the verdict, holding that the incident could not be viewed as having unduly influenced the verdict. In State v. Robinson, 52 La. Ann. 551, 27 So. 129, a brother of the deceased interrupted and contradicted the accused while testifying in his own behalf. * * * This court declined to interfere, saying that the opinion of a district judge that the incident did not affect the verdict was a finding on a matter which he was peculiarly competent to determine. In State v. Spillers, 105 La. 163, 29 So. 480, a murder case, the district attorney in closing his address appealed to the jury to bring in a verdict of guilty, whereupon the crowd in the courtroom burst into applause, which the judge immediately suppressed, * * * at the same time instructing the jury to disregard the applause, and to be governed by their opinion alone. The defendant was found guilty as charged, and was sentenced to death. This court refused to interfere; it not being evident that the jury was influenced by the incident. It is a general rule that `remarks of bystanders unfavorable to the accused, to or in the presence of the jury, and overheard by them, although reprehensible, are not ground for a new trial, unless it shall actually appear that a verdict of conviction was produced thereby.' 12 Cyc. 730."

In this case the bystander merely questioned the accuracy with which the answer of a witness to a question was interpreted.

Bill No. 2 was reserved to a ruling permitting the district attorney to ask the following question of a state witness:

"What did you do at the time you saw the two men put guns to your husband's stomach and to your son's head."

The question was objected to as being leading. The judge's per curiam to this bill is as follows:

"The witness had previously stated in her direct examination, `I went into the kitchen and saw two men who were saying, hold up your hands, and at the same time holding pistols to them.' The witness was being examined with some difficulty through an interpreter, and it appeared to be necessary to form the questions as plainly as possible. The court did not consider the question leading."

Frivolous objections, such as this appears to be, have an injurious rather than a helpful effect. It is true that this witness had not previously testified that guns were put to her husband's stomach and her son's head, but these facts had already been established by other witnesses, and witness had already testified that she saw two men and had heard them say to her husband and son to hold up their hands and she saw these men hold pistols to them. The only purpose of the question asked by the district attorney was to ascertain from the witness what she did when she saw this assault. No citation of authority is necessary.

Bill No. 3 was reserved to a ruling growing out of the following incident: Counsel for defendants asked Mrs. Salvador D'Asaro, a witness on cross-examination, this question:

"Who told you that it was Constanza's son that committed the robbery?"

The answer of the witness was:

"His father."

Counsel objected to the answer as being hearsay, and he sought to withdraw the question. He was too late. The court so ruled, and the ruling was correct. Counsel asked a question, the answer was responsive to the question, and it was given in the presence of the jury.

Bill No. 4 is equally as frivolous. The district attorney asked the witness this question:

"Who was doing the firing?"

The answer of the witness was:

"The men who were running out of Mr. Steve's gate."

The district attorney then asked:

"The men that were running out of Mr. D'Asaro's gate?"

This question was objected to as being a repetition of the testimony of the witness by the attorney. The witness had said that the shooting was done by the parties who were running out of Mr. Steve's gate, and the purpose of the question was to show that it was Steve D'Asaro's gate that the witness referred to; Steve and D'Asaro being one and the same person. The per curiam of the judge to this bill is as follows:

"In his direct examination, the witness stated, `I started over to see what was the excitement, and I saw two men running out of Mr. Steve's gate, and as they passed me they started to fire, and I stopped to keep from getting hit and went in.' The court could see nothing objectionable to the question by the prosecution: Q. `Who was doing the firing?' A. `The men that ran out of Mr. Steve's gate.' Q. `The men who were running out of Mr. D'Asaro's gate?' Mr. Steve and Mr. D'Asaro were one and the same person, and the question evidently was asked to avoid confusion, and did not seem to be objectionable."

The district attorney was merely clarifying and elucidating the facts testified to by the witness, and the objection is without merit.

Bill No. 5 is also without merit. The witness had testified that the firing was done by the men who ran out of Steve D'Asaro's gate. He was asked the question:

"Did you see the flash of the pistol?"

The question was objected to as being leading. The objection was overruled, and this bill was reserved to the ruling. It is hardly necessary to cite authorities in support of the correctness of that ruling.

Bill No. 6. This bill was reserved to questions propounded by the state to test the credibility of Felix Constanza, the father of one of the accused, and a witness in his behalf. Mrs. Salvador D'Asaro had testified, on cross-examination and in response to a question by counsel for the defendants, that Sam Constanza's father told her his son had committed the robbery. Felix Constanza, on direct examination, contradicted this statement. On cross-examination the district attorney asked him several questions concerning his visits to D'Asaro's house after the holdup and concerning his sending of emissaries, viz., Guinna, Cosmo Valenti, and Guiseppe Popaloni, to D'Asaro in the interest of the accused, to all of which questions counsel for defendants objected. The court ruled that the testimony was admissible for the purpose of testing the credibility of the witness and for that purpose only, and the jury was so instructed. It was also urged, in support of this bill, that Papaloni and Valenti were not sworn as witnesses to contradict the denials of Felix Constanza. The authorities relied upon by counsel have no application to this case, because forthwith subpœnas for these witnesses were issued by the district attorney, in which their correct residence and place of abode was given, and the sheriff's return thereon showed that they could not be found. The state did everything possible to secure their presence at the trial, and this is all that is required of the state under the ruling in the Guagliardo Case, 146 La. 949, 84 So. 216, which is relied upon by defendants. In that case this court said:

"If he [the district attorney] fails to offer such testimony, and gives as a reason for his failure, not that he was unable to do so, but that he considered it unnecessary, the jurors may be left with the impression that he could have made good his assurance had he so chosen, and particularly may that be true where, as in this case, the court gives the jury no instructions upon the subject."

In this case no objection was made to any part of the charge as given by the court, and no request was made for a special charge. When the questions were asked, the court instructed the jury as to their purpose. The jurisprudence of the state is that a verdict approved by the trial judge will not be set aside because of improper conduct of the district attorney, unless this court is convinced that what the district attorney improperly did contributed to the verdict found. State v. Harper, 143 La. 534, 78 So. 845; State v. Shoemaker, 143 La. 65, 78 So. 240; State v. Thornton, 142 La. 797, 77 So. 634; State v. Ailes, 133 La. 563, 63 So. 172; State v. Johnson, 127 La. 458, 53 So. 702; State v. Hamilton, 124 La. 137, 49 So. 1004, 18 Ann. Cas. 981; State v. Montgomery, 121 La. 1005, 46 So. 997; State v. Forbes,111 La. 473, 35 So. 710; State v. Thompson, 109 La. 296, 33 So. 320; State v. Fourchy, 51 La. Ann. 228, 25 So. 109; State v. Jones, 51 La. Ann. 103, 24 So. 594; State v. Johnson, 48 La. Ann. 87, 19 So. 213; State v. Jefferson, 43 La. Ann. 1001, 10 So. 199; State v. Meche, 114 La. 231, 38 So. 152; State v. Clayton, 113 La. 782, 37 So. 754; State v. Young, 114 La. 686, 38 So. 517.

Bill No. 7 was reserved to an order of the court directing that Felix Constanza be separated from the other witnesses. Counsel for defendants had asked for a severance of all the witnesses, and the court ordered the severance. After Constanza had testified, the district attorney asked that he be separated from all of the witnesses. The court so ordered, and this witness was escorted by a deputy sheriff to a place different from that occupied by the other witnesses. The judge's per curiam to this bill is as follows:

"The court, at the request of the state, directed the witness Constanza to be separated from the other witnesses, those who had testified and those who had not yet been called to the stand. This is a matter of discretion with the court, and was in keeping with the request of counsel for defendants for a separation of all of the witnesses at the beginning of the trial. He was not under arrest, nor held incommunicado at any time, and, as the court stated, the sheriff is merely showing a witness to a place, to be kept separated from the other witnesses, but not under the orders of the sheriff."

Orders to separate witnesses, and their enforcement, are generally addressed to the sound discretion of the court. State v. Hagan, 45 La. Ann. 839, 12 So. 929.

The granting or refusing of a motion for the separation or sequestration of witnesses is within the sound discretion of the trial judge. State v. Daniels, 122 La. 261, 47 So. 599.

Bill No. 8 was reserved to the overruling of a motion for a new trial. Eight reasons are alleged in the motion why a new trial should be granted. The first is that the verdict of the jury is contrary to the law and the evidence, and that the jury failed to give the accused the benefit of a reasonable doubt.

The other grounds urged are the same as are urged in the several bills of exception which we have already considered and disposed of. The mere allegation that the verdict is contrary to the law and the evidence presents nothing for review, and the allegation that the jury failed to give the accused the benefit of a reasonable doubt is a question of fact of which, under the Constitution of the state, the jury are the sole judges.

For these reasons the verdict of the jury and sentence of the court are affirmed.

On Rehearing.