author: HAMITER, Justice.

text:
    232 La. 238
    STATE of Louisiana v. Thomas GOINS.
    No. 43017.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.

      James D. McGovern, Jr., New Orleans, for defendant-appellant.

      Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Edward A. Haggerty, Jr., James C. Garrison, Asst. Dist. Attys., Aubrey C. Evans, New Orleans, for appellee.
   HAMITER, Justice.

In cause No. 149-978 on the docket of the Criminal District Court for the Parish of Orleans the defendant herein, Thomas Goins, and one Bejamin Mackey, both colored and approximately 18 years of age, were charged jointly in an indictment with the murder of Anthony Meyers on April 1, 1955. That indictment, however, was nolle prosequied when a new Grand Jury, containing Negro members, reindicted them on the same charge.

On the day of the trial on the second indictment, in cause No. 151 — 611-, the state severed as to Benjamin Mackey and proceeded to prosecute Goins alone. The prosecution resulted in a verdict of guilty as charged.

Subsequently Mackey, who had been used as a state witness in the trial of Goins, was permitted to plead guilty without capital punishment. He was sentenced to hard labor for life in the state penitentiary.

Goins received a sentence of death by electrocution. From it and his conviction he is appealing.

To properly discuss some of the 52 perfected bills of exceptions, the majority of which obviously cannot possibly be seriously relied on for a reversal although defense counsel announced that he was not abandoning any of them, it is well that we briefly recite the principal facts relating to the crime charged to appellant.

At approximately 7:30 o’clock P.M. on April 1, 1955, appellant and Benjamin Mackey forced Thomas Hulings (known as Dusty), a 16 year old Negro, to steal an automobile for them. While driving this car at about 9:00 o’clock. the same night they came upon onp Francisco (or Frank) Imperatore, an Italian citizen, whom they attempted to rob with force of arms. When Imperatore began running he was shot by the defendant with a .38-caliber revolver. And as he staggered Goins and Mackey drove away.

About ten or fifteen minutes later they approached the victim in this case, Anthony Meyers, who was walking. Goins alighted from the car and went to him for the purpose of committing an armed robbery. Meyers quickened his pace and attempted to flee; but, as he moved away, the defendant shot him twice in the back. While the victim lay on the sidewalk Goins took a wallet and some change from his pocket.

Shortly after the defendant and Mackey had left the scene Dusty Hulings, who meanwhile had stolen another automobile, was observed. They chased him about twenty blocks (he thinking that they were police officers) until he abandoned the car he was driving. The defendant and Mack-ey, thereupon, appropriated it; and while driving around in this second vehicle they were apprehended by a motorcycle policeman (Henry Cerise). Mackey, obviously to prevent arrest, fired two ineffective shots at the officer from the above mentioned revolver.

Some minutes later defendant and Mack-ey abandoned the second automobile (when its engine failed) and stole a third. In it they drove to Sander’s barroom where the defendant told one Lawrence Warden that he had just shot a man whom he then thought to be dead.

Bill No. 1. At the commencement of the trial the Clerk of Court inadvertently read to the jury the indictment in cause No. 149-978 (which, as before shown, had been nolle prosequied) instead of the subsequent indictment in cause No. 151-611 on which the defendant was to be tried. Because of the inadvertency defense counsel moved for a mistrial. The motion was overruled and this bill was reserved. The Clerk then read the second i(the proper) indictment to the jury.

The defendant was in no manner prejudiced inasmuch as the judge explained to the jury that the first indictment had been read in error, that it was “the same charge to be tried by you for which you have been empaneled”, and that the second charge was simply a repetition of the first one.

Bill No. 2. In his opening statement the district attorney said that he intended to show the movements of the defendant on the night of the crime, particularly referring to the stealing of the first car, to the attempted robbery of Imperatore, to the flight from the motorcycle officer after the commission of the crime charged, etc. (as set out above). At this point defense counsel objected to the references to what he termed “a series of crimes” and “to the introduction of any evidence as to any other crimes than the crime for which the accused is on trial here today.”

Proof of such movements was proper (and hence they were properly referred to in the opening statement) to show preparation for the commission of the crime charged, intent, motive and a consciousness of guilt, even though the acts involved constituted independent offenses. State v. High, 116 La. 79, 40 So. 538; State v. Morgan, 211 La. 572, 30 So.2d 434; State v. Haddad, 221 La. 337, 59 So.2d 411; and State v. Palmer, 227 La. 691, 80 So.2d 374.

Additionally, in this bill (No. 2) defense counsel attempts to incorporate a remark allegedly uttered by the district attorney that “ * * * we have the right to show that there is a system in these murders”. There is considerable doubt that the remark was made. But be that as it may the trial judge correctly points out in his per curiam that (if made) it occurred during a colloquy between the district attorney and defense counsel, and that no objection was then urged theréto so that a ruling might be given or the alleged error corrected.

Bills Nos. 3 and 4. For his own benefit the district attorney had reduced the opening statement to writing, and he had filed a copy thereof with the court reporter to be used for verification purposes as the statement was read to the jury and for facilitating the court in regulating the introduction of evidence. Defense counsel requested that he be given a copy of the statement for his private files or that he be permitted to have the one furnished the court reporter for overnight study. Each request was denied and these bills were reserved. The court announced, however, that counsel could have free access to the copy made part of the record (that furnished to the reporter) provided that he did not remove it from the court room.

The bills are without merit. There is no law even requiring the district attorney to reduce his opening statement to writing, much less to furnish a copy thereof to defense counsel. Nor do we know of any requirement that the judge permit the removal of a copy thereof from the court records if and when one has been filed. Furthermore, since defense counsel was granted unlimited access in the court room to the filed copy we perceive of no prejudice resulting from the judge’s rulings.

Bill No. 5. This bill was taken when the brother of the victim (Anthony Meyers) was shown photographs (S-l and S-2) of the latter, was asked if he recognized the person there pictured, and was permitted to answer the question. The basis of the objection was that “the proper predicate has not been laid as to proof of authenticity by the photographer who took the photographs”.

The question asked was solely for the purpose of identifying the victim named in the indictment. Subsequently, the photographs, before being introduced into evidence, were identified by the person who took them in the morgue. The same procedure was held not to be reversible error in State v. Foss, 158 La. 471, 104 So. 211.

Bills Nos. 6 and 7. The first of these bills was taken when the prosecutor was all-owed to ask the brother of the victim (who visited the decedent at the hospital) if he was familiar with the condition of the latter’s back. The answer was yes. Bill No. 7 was reserved to the permitted testimony immediately following to the effect that the victim, while in the hospital, had quite a few 'bed sores on his back and buttocks.

In permitting the introduction of this evidence the judge specifically informed the jury that it was for the limited purpose of identifying decedent’s body as of the time it was in the morgue — that the witness was testifying only as to what he saw as a layman, not as a medical man. Under these circumstances the testimony was relevant and, therefore, admissible.

Bill No. 8. During cross examination of the decedent’s brother defense counsel asked him if it was his testimony that when he visited the victim in the hospital there was no bandage on the bullet hole. To which he answered “That’s correct. Let me explain.” Defense counsel objected to any explanation, and he reserved this bill when the court overruled the objection and permitted the witness to make it. He explained that he did not see his brother on April 1 (the night of the shooting) but that when he saw him on April 2 “he did not, to my knowledge, have a bandage on the bullet hole.” The bill is frivolous. A witness may give an explanation of a “Yes” or “No” answer if he deems that the whole truth so demands and it is relevant and otherwise admissible. State v. Foster, 164 La. 813, 114 So. 696.

Bill No. 9. While the decedent’s wife was testifying the prosecutor again produced the aforementioned photographs (S-l and S-2) and asked her if she could identify the person pictured. The same objection was made as when the decedent’s brother was propounded a similar identification question, and it was likewise overruled. For the reasons given above in connection with Bill No. 5 the ruling of the judge was correct.

Bill No. 10. This bill was taken when the court overruled defense counsel’s objection to the questioning of the coroner in connection with his written autopsy report it being referred to as a “procés-verbal”. At this time the report had not been introduced in evidence, but the coroner did identify it as having been made by him. He then testified fully as to the cause of death. Assuming for the moment that the report was not admissible in evidence, it could properly be used by the coroner to-refresh his memory and only for such purpose was the report then employed. The ruling permitting his testimony was correct.

Bill No. 11. As stated in defendant’s brief, “This bill was reserved on the same objection as discussed in bill No. 5 and the other bills reserved to the admissibility and/or use of the photographs admitted in evidence herein.” Therefore, no consideration of the bill is necessary.

Bill No. 12. This bill also relates to the mentioned photographs S-l and S-2. The objection was directed at the questioning of the coroner concerning them because (1) they were not then in evidence and (2) they should not be admitted and shown to the jury, such being unnecessary and also extremely prejudicial in view of their gruesome character.

The first reason for the objection was overcome when the photographs were introduced. The second reason is also unfounded for, as heretofore shown, they were admissible for the purpose of identifying the deceased person as the one named in the indictment. Further, as pointed out by the judge in his per curiam, they could he employed to show the location of the bullet wounds in decedent’s back. See State v. Johnson, 198 La. 195, 3 So.2d 556; State v. Ross, 217 La. 837, 47 So.2d 559; State v. Solomon, 222 La. 269, 62 So.2d 481; and State v. Palmer, 227 La. 691, 80 So.2d 374.

Bills Nos. 13 and 14. After the discussed photographs were admitted into evidence the district attorney sought to introduce the so-called “procés-verbal” of the coroner’s autopsy for the purpose of showing the cause of death of Anthony Meyers. Shortly thereafter he asked permission to exhibit the photographs to the jury. Defense counsel offered an objection to the introduction of the procés-verbal which was overruled and bill No. 13 was reserved. Counsel then objected to the showing of the photographs to the jury without exhibiting at the same time the procés-verbal. The court stated that it had already ruled that the photographs and the procés-verbal could be exhibited. Thereupon defense counsel reserved bill No. 14.

If the procés-verbal was improperly admitted in evidence (as counsel contends) its introduction, under the circumstances existing here, resulted in no prejudice to the accused. As indicated by the judge’s per curiam it formed only a very small part of the state’s case, the purpose thereof being merely to show the cause of death. In this connection the coroner had already testified fully as to the cause of death, and his testimony was substantiated by that of numerous other witnesses and by many circumstances, including the confessions of the defendant himself.

Bill No. IS. On redirect examination of the coroner the prosecutor, after referring to certain testimony which had been elicited on cross examination, asked: “Did you mean that this man would have these hemorrhages if he had not been shot?”, and he replied: “No, sir.” Defense counsel objected, and reserved this bill, to the phraseology used by the district attorney on the basis that “he has lead the witness into an inescapable answer.”

Since the propounded question merely called for an explanation or a clarification of what had already been testified to on cross examination we doubt that it was objectionable. In all events it is noted that the witness had previously answered a similar question without objection.

Bill No. 16. This bill was reserved when the state called Edward Baldwin (an assistant district attorney) as a witness, and the judge permitted him to testify over defendant’s objection. Counsel objected to his taking the stand because (1) no mention was made of him as a witness in the opening statement and (2) his name was not on the list of witnesses subpoenaed for the state.

In his opening statement the district attorney had said that Francisco Imperatore, the defendant’s first attempted robbery victim, had returned to Italy. The witness Baldwin was called for the sole purpose of explaining the absence of Imperatore and thereby avoiding the presumption which might have arisen by the failure of the state to produce him as a witness.

The district attorney in his opening statement is not required to give in minute detail all of the evidence which he intends to introduce or the name of each witness he proposes to place on the stand. State v. Winey, 216 La. 560, 44 So.2d 115 and State v. Pearson, 224 La. 393, 69 So.2d 512. Furthermore, Baldwin’s testimony was not evidence by which the state expected to establish the commission of the crime. Its purpose, as before shown, was merely to explain why a particular witness was not called.

Unfounded also is the objection that Baldwin was not listed to be summoned as a state witness. We know of no law, nor have we been cited to any by defense counsel, which requires the listing of witnesses who need not be subpoenaed.

Bills Nos. 17, 18 and 19. While assistant district attorney Baldwin (mentioned in bill No. 16) was on the stand he was propounded questions relative to Tmperatore’s having been held for a while as a material witness in a case in which Goins and Mackey were charged with attempted murder. To Baldwin’s testimony defense counsel interposed several belated objections. These were overruled and bills Nos. 17 and 18 were reserved. The following colloquy between the judge and defense counsel then followed:

“By the Court: The only purpose of this testimony of the assistant district attorney is to identify this man who-was given permission to leave the United States.
“I make this statement for the benefit of the jury.
“Mr. McGovern: I say that other information was volunteered which was prejudicial to the rights and the case of this defendant.
“Will your Honor instruct the jury to disregard anything but the fact that that particular witness has been excused to permit him to go back to Italy ?
“By the Court: Yes. I am telling them that. But I am not instructing them to disregard the details of where the man is, as testified by this assistant district attorney.
“Mr. McGovern: I now move for a mistrial on the basis that your Honor has commented upon, and in effect repeated, the testimony of a witness, which testimony has been subject to an objection and a bill of exception reserved.
“I therefore now move for a mistrial
“By the -Court: The statement of the court was made for the benefit of the record and in answer to counsel who makes the objection. The court has to explain his ruling for the benefit of the record. Other than that, the court has nothing to say. The motion is overruled.”

Bill No. 19 resulted from the overruling of the mentioned motion for a mistrial.

If the testimony referred to in bills Nos. 17 and 18 was objectionable the judge clearly eliminated its harmful effect by restricting it, under his instructions to the jury, to the identifying of Imperatore as having been permitted to leave the United States. Bill No. 19 likewise is without merit. Under the circumstances the remarks of the judge did not constitute a comment on the evidence; they were merely in explanation of his ruling. Moreover, the judge made them in response to defense counsel’s request that he so instruct the jury.

Bills Nos. 20, 21, 22 and 24. The first three of these bills were taken when the state was permitted to introduce in evidence and exhibit to the jury photographs (S-4 through S-9) of the scene of decedent’s shooting, defense counsel having objected on the ground that the proper predicate for the introduction had not been laid. While the photographer did not testify at this time (he did so later, as hereafter shown) the pictures were identified by Lt. Dumaine, a police officer who had gone to the scene of the crime immediately after the shooting. He was familiar with the neighborhood and stated that the pictures were of the street corner where he found the victim. Too, as the trial judge appropriately points out in substantiation of his rulings in which we find no error, the names of the intersecting streets forming the corner in question are lettered in the sidewalks and appear in several of the photographs, thus making the identification even more certain. Again, the state later produced the photographer who took the pictures and he identified them.

To the latter’s testimony defense counsel objected as coming “too late”, and he reserved bill No. 24 on the overruling of the objection. The defendant cannot regulate the state in its order of proof, and the procedure resorted to here was held not to be reversible error in State v. Foss, supra.

Bills Nos. 23 and 25. These bills were reserved to the overruling of defense motions for a mistrial made when Lt. Du-maine and another officer, who were at the scene of the crime shortly after it occurred, respectively volunteered the information (the testimony was not responsive to the prosecutor’s questions) that the victim had told them that he had been shot. Previously, the judge had carefully instructed each to tell only what he saw and knew and not what he had been told.

Assuming that it was improper for these witnesses to repeat the statement made to them by the victim (the state contends that it was admissible as part of the res gestae), we do not find that there was any prejudicial error committed. In each instance the court instructed the jury to disregard the volunteered information. And we have held on numerous occasions that such a voluntary statement for which the district attorney is not responsible cannot defeat a conviction, particularly when the jury is instructed to disregard the remarks. See State v. Labat, 226 La. 201, 75 So.2d 333 and the many cases cited therein. Furthermore, the record is replete with other testimony that the victim had been shot.

Bill No. 26. In his opening statement the district attorney had said that he would show that on Friday, April 21, certain remarks were made by the defendant to Thomas Hulings while the latter was visiting in the parish prison. Later, Hulings took the stand and testified as to the occasion and the remarks. On cross examination it was brought out that the date of the mentioned visit was the Friday previous to the trial, or October 21. Defense counsel then requested “that all of the testimony of this witness must be excluded as beyond their opening statement”, and he reserved this bill to the court’s refusal of the request. (Italics ours.)

Primarily, the court’s ruling was not in error since the record discloses that this witness’ testimony dealt with numerous other incidents relating to the actions of the defendant, immediately before and after the commission of the crime, which were properly covered in the opening statement. At the most defense counsel might have been entitled to the exclusion of that part of the witness’ testimony relating to the occurrence in the jail; but his request was that all of the testimony be excluded—one to which he obviously was not entitled.

Furthermore, we agree with the trial judge, as stated in his per curiam to this bill, that “ * * * the date could have been April 21, or in May, June, July, August, September or October, or Friday, October 21, which was the date actually fixed by the witness, and the relevancy and the perti-nency of this evidence would not have been affected. Any date subsequent to the time appellant was in the Parish Prison on this charge would suffice for the relevancy and pertinency of the incident.

“ * * * it was the incident itself, all of the details of which incident were set forth in the opening statement, that was the essence and the substance of this testimony.”

Bill No. 27. While the witness Lawrence Warden was testifying before the jury about an oral confession made to him by defendant in Sander’s bar on the night of the crime (after the predicate had been laid showing the free and voluntary nature of it) he was asked: “Did he tell you why he killed the man?” The witness answered: “He said he was holding him up and he ran”. At this point defense counsel objected on the ground that this particular remark was not submitted on the laying of the predicate. The obj ection was overruled and this bill reserved.

When counsel objected the question had already been answered (he did not request instructions that the answer be disregarded) ; hence, the objection came too late. Additionally, the remark constituted only a small part of or incident in a single confession which had properly been shown to be free and voluntary.

Bills Nos. 28, '29, 30 and 31. All of these bills were taken in the absence of the jury.

To traverse the showing made by ' the state, for the introduction of the several confessions defense counsel called to the stand James P. Screen, the attorney for Mackey, and asked the following question: “Is it not a fact that on behalf of your client you have made a deal with the district attorney’s office that, in return for the testimony of your client against the accused at the bar, Thomas Goins, the co-defendant Benjamin Mackey would be granted a severance and would be allowed to plead ‘Guilty without capital punishment’ in a subsequent trial after the conclusion of this trial?” The state objected on the ground that the testimony sought to be elicited was not then relevant. The objection was sustained and defendant reserved bill No. 28. Before the judge at that time (the jury was absent) wa9 only the question of the voluntariness of the confessions made by defendant. The query of defense counsel addressed itself to the matter of the credibility of the accomplice Mackey, and was then completely irrelevant (as the judge ruled).

Next, defense counsel called Mack-ey, in a further attempt to traverse the state’s testimony, and asked if he had made any admissions to the police. The question was objected to by the district attorney who then said: “He has the right to protect his constitutional rights and refuse to answer on the grounds of his rights.” Thereupon, defense counsel moved for a mistrial “ * * * on the basis of the prejudicial statement by the district attorney. When the witness is trying to answer, he is putting words in his mouth.” The judge denied the motion for a mistrial, and bill No. 29 was reserved. The witness, after consulting with his attorney (Mr. Screen), refused to answer, standing “on my constitutional rights.” No prejudice resulted from the ruling, assuming that error was committed, because later defense:- counsel • did elicit testimony from the witness to the -effect that he had signed a statement implicating himself in the murder.

While Mackey was still testifying out of the presence of the jury defense counsel asked what persons requested him to give testimony against Thomas Goins. The state objected on the ground that it was immaterial “to the issue here", and bill No. 30 was reserved when the court refused to permit the witness to answer. Clearly the trial judge ruled correctly. The only issue before the court at that time was the free and voluntary nature of the confessions.

Later, in the same period of questioning by defense counsel, the witness Mackey was asked: “Mackey, * * * it is my understanding that you say the written statement you made to the police was free and voluntary and was without any beating by the police, or any threats or promises by the police. Is that correct?” The court noted that the witness had already refused to answer the question, and the witness then said: “I stand on my constitutional rights.” Defense counsel then reserved bill No. 31 to the witness’ use of the privilege. Since the witness had already previously testified that he had made a written statement implicating himself in the murder, and had answered a similar question in the affirmative we do not find that there was any prejudice to the defendant in the court’s failure to require a repetition of the answer.

Bills Nos. 32 and 36. These bills were taken to rulings of the court that the oral and written confessions made to Lt. Trosclair and other officers and an oral confession made in Charity Hospital to the victim’s wife were admissible in evidence. We have read the testimony taken in connection with these bills, almost all of which was given by eight persons called by the state, and we do not find that there was any error in the trial judge’s conclusion in admitting the confessions. It overwhelmingly shows- that- the confessions were freely and voluntarily given. The lone witness testifying to the contrary was the defendant himself. Even the testimony of the accomplice Mackey, when called by the defendant, proved entirely negative as to threats, intimidation, promises, etc. Under such circumstances we would not be warranted in disturbing the rulings. See State v. Mistretta, 192 La. 489, 188 So. 150 and State v. Holmes, 205 La. 730, 18 So.2d 40.

Bill No. 33. While Lt. Trosclair was being cross examined by defense counsel as to whether the accused was taken to the hospital so that the victim might identify him, the following answer was given: “No; that was not the purpose. We went there because he wanted to explain to the victim just how he held him up, and how he shot him.” Whereupon counsel moved for a mistrial because of the alleged prejudicial nature of the witness’ unsolicited statement, and he reserved this bill when the motion was overruled. There is no suggestion that the district attorney was in any way responsible for the unsolicited portion of the answer. Too, the trial judge instructed the jury to disregard the remark. Therefore, the ruling of the trial judge was proper. See State v. Labat, supra.

Bill No. 34. After the state in the presence of the jury had again presented its evidence disclosing that the confessions were free and voluntary defense counsel attempted to place the accused on the stand for the limited purpose of traversing the testimony on such point. This bill was reserved to the trial court’s ruling that he could not limit the state in its cross examination of the defendant. The ruling was correct. The defendant previously had been afforded (and he exercised) the privilege of restricted examination for the purpose of traversing, it having properly occurred during the absence of the jury and prior to the ruling that the confessions were admissible. The admissibility of a confession is a question for the trial judge; its weight and effect, after it. has been ruled admissible, is one for the jury. Accordingly, the time for determining the matter of admissibility is when the state is proving the voluntary nature of the confession, out of the presence of the jury, preparatory to offering it in evidence. See State v. Thomas, 208 La. 548, 23 So.2d 212; State v. Wilson, 217 La. 470, 46 So.2d 738; and State v. Jugger, 217 La. 687, 47 So.2d 46.

Bill No. 35. In the presence of the jury and before the state had completed its case in chief the judge permitted the defendant to introduce evidence relative to matters going to the weight of the confessions. (This procedure seems somewhat irregular, although certainly not prejudicial to the accused, as is pointed out by the trial judge in his per curiam to the preceding bill.) To this end defense counsel called the accomplice Mackey as his witness, and after propounding some preliminary questions concerning the confessions queried: “Who asked you to testify against Thomas Goins?” On his own motion the judge ruled the question improper saying “I don’t think we have gotten around to that yet. * * * The court has certain powers to control the conduct of the case.” To the ruling defense counsel reserved this bill. As indicated by the remarks of the judge, and as stated in his per curiam, the question was ruled out because he considered it as being in cross examination of Mackey (then a defense witness on direct examination) who had not yet appeared as a witness for the state and, hence, it was improper at that time. When Mackey was ultimately called by the state defense counsel was permitted full and free cross examination of him. There is no merit, therefore, in the bill.

Bills Nos. 37 and 38. While Lt. Trosclair was on the stand giving the substance of the oral confession which the defendant had made to him certain parts of his testimony (hence parts of the confession) were objected to, 'and these bills were reserved when the judge overruled the objections. The bills are without foundation.' The record shows that this testimony was merely a recitation of the oral confession made by the defendant. As such it had to be given to the jury in its entirety. LRS 15:450; State v. Paternostro, 219 La. 563, 53 So.2d 673.

Bill No. 39. This hill was reserved to the overruling of defendant’s objection to the written confession for the reasons that (1) it was not voluntary and (2) it was not verbatim, but “in substance” the confession of the defendant. We have already discussed the question of whether the confession was voluntary and have held that it was. The cases of State v. Brasseaux, 163 La. 686, 112 So. 650 and State v. Comery, 214 La. 245, 36 So.2d 781, fully support the ruling that the written confession signed by the defendant need not be verbatim.

Bill No. 40. This bill was taken when the judge refused to instruct the jury that the two shootings (of Imperatore and of Meyers) referred to in the written confession were not separate incidents but were a “rehash” of the same incident. The bill cannot possibly be seriously relied on. The confession was properly proved and introduced ; an interpretation of its contents was for the jury. For the court to have attempted an explanation thereof would have amounted to a comment on the evidence.

Bills Nos. 41, 42 and 43. These bills were reserved when the judge, over defense counsel’s objection, permitted the plaid jacket and white T-shirt worn by the decedent at the time of the shooting to be introduced in evidence and exhibited to the jury. The objection was that they had not been sufficiently identified, “only by a party definitely in interest, the wife of the deceased.” The state showed that the wife was qualified to make the identification and this was not rebutted by defendant. Her interest affected only the weight, not the admissibility, of the evidence.

Bill No. 44. This hill was taken to the introduction into evidence of decedent’s fishing license, hunting license and driver’s license, the objection being that they had not been properly identified. The bill is unfounded. The widow testified that these items were always kept by decedent in the wallet which defendant admittedly removed from his pocket. They were further identified by the signature, name and address of decedent borne by each.

Bill No. 45. When Motorcycle Patrolman Henry Cerise was permitted to testify as to his having been shot at shortly after the commission of the crime charged, while he was attempting to stop the fleeing car containing the defendant and Mackey, defense counsel objected and reserved this bill. The objection was that the shooting constituted a separate crime and as such was inadmissible in evidence. The testimony was admissible as disclosing conduct indicating a consciousness of guilt. See State v. High, supra. Besides, the same incident was related by defendant in his confessions to the police, and the accomplice Mackey testified to it without objection from defense counsel.

Bill Nos. 46 and 47. The first of these bills was reserved when the court permitted Mackey to testify as a state witness, defense counsel having objected to any testimony by him “on the ground he is a co-defendant and is being tried on the same indictment and request(ed) of the state a severance so that he might present it to a separate jury.” Bill No. 47 was taken to the refusal of the court to limit Mackey’s testimony to the verification of the defendant’s confession. There is no merit in these bills. It is well settled that the testimony of an accomplice is admissible, although it should be viewed with extreme caution. The fact that the witness is an accomplice affects only the matter of credibility, with respect to which the jury is to pass judgment. State v. Pace, 183 La. 838, 165 So. 6; State v. Gunter, 208 La. 694, 23 So.2d 305; and State v. Matassa, 222 La. 363, 62 So.2d 609.

Bill. No. 48. This bill was reserved to the ruling of the court in refusing at the close of the state’s case to order a directed verdict of not guilty. We are unaware of any law of this state, and have been cited to none, authorizing directed verdicts in capital cases.

Bill No. 49. In his closing argument to the jury the district attorney referred to the defendant’s written confession as a “duplicate original of the confession.” Defense counsel objected to the reference, stating that the jury must determine for themselves what they thought it was. There was no ruling and no bill reserved. Hence, there is nothing here for this court to consider.

Bill No. 50. This bill was reserved to the overruling of a motion for a mistrial because of misstatements of law allegedly made to the jury by the district attorney in his closing argument. The closing arguments of counsel, we are informed by the judge’s per curiam, are not recorded by the court reporter until an objection is made to some specific part thereof. When that occurs he records the complete incident objected to. No such recorded incident is disclosed by the transcript and, hence, we must accept the statements of the trial judge (as set out in his per curiam) as to what actually happened here.

. The judge points out first that no objection to alleged misstatements was urged until after the district attorney had concluded his argument. He further informs us that he listened carefully and closely to the prosecutor’s argument; and, in clear and forceful language, he says that defense counsel’s allegations attributing misstatement's to the district attorney are “completely erroneous and utterly without any foundation in fact.” We find no merit, therefore, in the bill.

Bill No. 51. This bill 'was reserved to the overruling of a motion for a new trial. In the motion defense counsel set forth the asserted errors covered by the previous fifty bills, and he also alleged the existence of certain newly discovered evidence. We have read the evidence taken on the motion and have concluded that there is nothing which would warrant our reversing the ruling of the trial judge.

Bill No. 52. Defense counsel reserved this bill when the judge overruled his motion in arrest of judgment. In his brief to this court he points to no error in the ruling; he merely refers us to the bill itself. We have consider the motion, the bill taken to its overruling, and the trial judge’s per curiam furnished in connection therewith. We find no error in the ruling.

For the reasons assigned the conviction and sentence are affirmed.


source: Caselaw Access Project

author: HAMITER, Justice. McCALEB, Justice

license: Public Domain

text:
    232 La. 275
    Succession of George Jacob KAMLADE.
    No. 42872.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.

      Baldwin, Haspel & Molony, Conrad Meyer, III, James Everett Brown, Mark W. Malloy, McCloskey & Dennery, Joseph McCloskey, James E. Wright, Jr., William J. Daly, New Orleans, for defendants-appellants.

      Cabral & Cabral, Harry R. Cabral, Harry R. Cabral, Jr., Thomas C. Wicker, Jr., George M. Brooks, Roland R. Selenberg, New Orleans, for defendants-appéllees. ■
   HAMITER, Justice.

George Jacob Kamlade died at his domicile in the Parish of Orleans on February 16, 1952, leaving an olographic last will and testament which carried the dateline “New •Orleans May 27/33” and, among other things recited: “It is my wish that my estate be used for the care and keep of my brother’s widow, Selma, and * * * after the death of my sister-in-law, I wish my estate to be divided as follows, one half to go to my cousins from my Mother’s side of the family and the remaining half to my cousins from my Father’s side of' the family, * * Numerous cousins were the only relatives surviving the decedent.

Following probate of the will the duly qualified co-executors petitioned the district court for a judgment, under the Uniform Declaratory Judgment Act (LRS 13:4231 et seq.), declaring and decreeing the meaning of the testator’s recital that “ * * * one-half to go to my cousins from my Mother’s side of the family and the remaining half to my cousins from my Father’s side of the family.” Cited to appear in the proceeding were some twenty-five persons allegedly the surviving cousins (or their legal representatives) of the decedent, they being first, second and third cousins on his father’s side and second and third cousins on his mother’s side.

All defendants answered the petition and thereafter the cause was tried on its merits, principally on an agreed stipulation of facts although some oral and documentary evidence was introduced (over objections) for the purpose of showing testamentary intent of the decedent. Ultimately, the trial judge rendered a judgment decreeing “ * * * that the disposing clause of decedent’s will wherein he left one-half of his estate to ‘my cousins from my Mother’s side of the family’ and the remaining half- t'o ‘my cousins from my Father’s side ,of the family’ is void for obscurity and uncertainty *' * * that the residuum of decedent’s estate should be inherited by the closest of kin to the decedent as in case of intestacy.” ■

But such judgment was not signed. Rather, the judge granted a rehearing and (in reversing himself) ruled “ * * * -that the disposing clause of decedent’s will wherein he left one-half of his estate to ‘my cousins from my Mother’s side of the family’ and the remaining half to ‘my cousins from my Father’s side of the family’ should be interpreted as meaning that one-half of decedent’s estate should go to the nearest surviving cousins on his Mother’s side of the family and the remaining half should go to the nearest surviving cousins on his Father’s side of the Family, * ■*

Accordingly, the district court finally decreed that one-half of the estate of decedent be divided equally among the named first cousins on his father’s side and that the remaining half be divided equally among the designated second cousins on his mother’s side (they were the nearest of kin on the respective sides).

From the judgment all parties defendant appealed except the nearest surviving cousins on the mother’s side of the family (second cousins of decedent).

Initially, we shall consider the contentions of the nearest surviving cousins on the father’s side of the family (first cousins of decedent and sometimes referred to hereinafter as “first cousin appellants”) who were recognized by the judgment as being entitled to one-half of the estate in question and are seeking on this appeal fo recover the remaining one-half.

It is urged by them that the testamentary disposition under consideration contains a prohibited substitution and, hence, is null and void; and that they, being the nearest heirs of decedent, should inherit the entire estate as in an intestate succession. In this connection reference is made to the following recital which precedes the disposition: “It is my wish that my estate be used for the care and keep of my brother’s widow, Selma, and * * * after the death of my sister-in-law, I wish my estate to be divided as follows * * (Then follows the disposition.)

For at least one reason such attack is not maintainable.' According to the agreed stipulation of facts the mentioned sister-in-law predeceased the testator. This being true the recital in her favor was without substance when the will became effective on the death of the testator. As stated in Revised Civil Code Article 1697, “The testamentary disposition becomes without effect, if the person instituted or the legatee does not survive the testator.” It is true, as counsel point out, that the “purpose of outlawing substitutions is to prevent the practice of taking property out of commerce”; and that “a disposition of property repro-bated by law, such as a substitution, is not susceptible of confirmation or ratification.” But obviously, under the circumstances, neither of these principles is appropriate here.

Again, the will is assailed by first cousin appellants as being without a certain date, the testator having dated it “May 27/33”. For at least two reasons this attack, made for the first time after trial and in a memorandum brief, likewise cannot succeed. Firstly, the issue was not properly raised by the pleadings or otherwise in the district court. City of Alexandria v. Morgan’s Louisiana & T. R. & S. S. Co., 109 La. 50, 33 So. 65; New Orleans Land Co. v. Board of Levee Commissioners of Orleans Levee District, 171 La. 718, 132 So. 121; and Weingart v. Delgado, 204 La. 752, 16 So.2d 254. Secondly, the agreed stipulation of facts, to which counsel subscribed (and on which the case was principally tried), specifically states “that the decedent died testate, leaving a last will and testament dated May 27, 1933 * * a date that is unquestionably certain.

- Next, the first cousin appellants contend that the word “cousins” as used in the testament means “first cousins” only. Alternatively, if the word is not so interpreted, they suggest that the entire disposition must be declared void for uncertainty with the result that they, being decedent’s closest collateral relatives, would inherit (as in an intestate succession) the whole of the estate.

We can find nothing within the four corners of the will indicating that the testator intended the disposition to be restricted to his first cousins, and the extrinsic evidence introduced (over the objections of their counsel) does not disclose that they were held in greater esteem than more distant collaterals.

Counsel for those appellants correctly state in their brief: “ * * * That part of the decedent’s testament which contains the term ‘cousins’ was written by him in 1933. At that time, the decedent had four first cousins living on his father’s side of his family, and had two first cousins living on his mother’s side of the family, namely, Elizabeth Awcock and Lotta Awcock. The stipulation of facts and the evidence introduced in the record at the trial of this cause show that the two first cousins on the decedent’s mother’s side of the family, mentioned above, died on April 26, 1945 and January 4, 1941, respectively.” However, it is important to notice that the testator did not die until 1952 and that for the last seven years of his life he had no first cousins on his mother’s side of the family. Seemingly, under these circumstances, he would have changed his will during that seven year period so as to expressly restrict the disposition to the surviving first cousins if he intended that only they were to participate in the distribution of his estate.

In further support of the contention that the word “cousins” means “first cousins” only, counsel cite Revised Civil Code Articles 95 and 892, some early decisions in the Louisiana jurisprudence, and numerous cases from common law jurisdictions. The codal articles make reference to “first cousins” and “cousins german in the fourth (degree) and so on”, thus' indicating that the word “cousins” must be appropriately-qualified in order to limit its meaning to first cousins. The common law cases, of course, are not controlling here even if analogous. And the cited early Louisiana decisions are not applicable, for therein the testator designated persons of specific degrees of relationship.

Neither is there merit to the above stated alternative suggestion that the entire disposition must be declared void by reason of uncertainty. It fails to give recognition to the requirement that in the interpretation of wills certain cardinal principles are to be applied. Some of these are:

“In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.” Civil Code Article 1712.
“A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.” Civil Code Article 1713.
“To determine the intention' of the testator the whole will is to be taken into consideration. Every word must be given effect if that can be done without defeating the general purpose of the will which is to be made effective in every reasonable method. Succession of Allen, 48 La.Ann. 1036, 20 So. 193, 55 Am.St.Rep. 295; Gueydan v. Montagne, 109 La. 38, 33 So. 61; Succession of Fath, 144 La. 463, 80 So. 659. No part of the testament should be rejected, except that which the law makes it necessary to reject. Succession of LaBarre, 179 La. 45, 46, 153 So. 15.” Succession of Price, 202 La. 842, 13 So.2d 240, 244.

These principles, when applied here, require that the estate of this decedent be divided into two equal portions, one-half for the mother’s side of the family and the other half for the father’s side. In unmistakable language he expressed an intention for such a division, and there appears no valid reason for rejecting it. Therefore, the intended division can and must be rendered effective.

But what was meant by the testator when using the unqualified word “cousins”? To which cousins on each side of the family did he intend to bequeath his property ? As before shown the disposition clearly was not limited to first cousins. Nor can we agree (as is contended by those appellants herein who are more distant relatives than the first cousin appellants) that the word “cousins” is to be interpreted as meaning “all cousins” of whatever degree. While our law obviously recognizes relations beyond the fourth degree (or first cousin), as is implied in Revised Civil Code Article 892 above mentioned, there is nothing indicating the number of degrees to which recognition is to be given. Accordingly, a person may have relations in the twentieth, thirtieth or fortieth degrees — a thousand or more cousins, many of whom would be unknown to him. For this reason it is difficult for us to believe that this testator intended to favor all cousins of whatever degree.

Consequently, we must conclude that the word “cousins” as used in the will is of doubtful meaning — it is ambiguous or uncertain. And the extrinsic evidence adduced, conflicting for the most part, furnishes no aid in resolving the ambiguity. However, a disposition must be understood 'in the sense in which it can have effect, rather than that in which it can have none. Revised Civil Code,- Article 1713. In other words if there is an interpretation which will save the decedent from intestacy it must be adopted.

Recognized in our jurisprudence is the rule that if a will is attended with doubt or ambiguity either as to a legatee or, the amount of a bequest, and extrinsic evidence furnishes no aid in resolving the doubt, it is not to be declared void by reason thereof; rather, that interpretation will be given the testament which will most closely approximate the legal order of distribution. See Burthe v. Denis, 31 La.Ann. 568, Miller v. Hirsch, 110 La. 259, 34 So. 435 and Succession of Williams, 132 La. 865, 61 So. 852. In the Burthe case the following was said: “ * * * Another important rule is, that in case of doubt, that interpretation should be preferred which will approximate closest to the legal order of distribution. * * *”

By applying this rule and the other rules above discussed we arrive at the conclusion that the trial judge correctly interpreted the disposition in question as meaning that “one-half of decedent’s estate should go to the nearest surviving cousins on his Mother’s side of the family and the remaining half should go to the nearest surviving cousins on his Father’s side of the family.”

For the reasons assigned the judgment appealed from is affirmed.

PONDER, J., dissents.

SIMON, J., recused.

McCALEB, Justice

(concurring in part and dissenting in part).

I concur in the rulings of the court with respect to the attacks on the legality of the will by the first cousins of decedent and it is also clear that the testator provided for his estate to be divided into two equal portions, one-half for his mother’s side of the family and one-half for his father’s side.

However, it is my opinion that, since it is well established by eminent law writers and a unanimity of opinion in other jurisdictions that the word “cousin”, as used in a will, means first cousin, see Black’s Law Dictionary, 2d Ed., page 292 ; 21 C.J.S., pp. 862, 863; Page, “Treatise on Law and Wills”, 3d Ed. (1941); Thompson on “Wills”, 3d Ed. (1947) and cases cited in Annotation, 19 A.L.R. 1410 et seq., and since there are no surviving first cousins on the testator’s mother’s side of the family, that disposition lapses and the heirs at law, i.e., the first cousins on the father’s side, inherit.


author: MOISE, Justice.

text:
    232 La. 289
    STATE of Louisiana v. Freddie EUBANKS.
    No. 43106.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rebearing Denied April 1, 1957.

      Herbert J. Garon, New Orleans, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Adrian G. Duplan-tier, New Orleans, for appellee.
   MOISE, Justice.

The defendant was tried, convicted and sentenced to death for the murder of Mrs. Mable Clarkson, a white woman, on May 24, 1954, He appeals to this Court from the conviction and sentence.

Thirty-two Bills of Exceptions were perfected during the trial, but approximately one-half this number are presented for consideration on this appeal.

Bills of Exceptions One through Six (consolidated on this appeal) were taken to the refusal of the trial court to quash the indictment returned against the accused, on the ground that the Grand Jury which returned the true bill of indictment against the accused was unconstitutionally drawn by Honorable Frank T. Echezabal, Judge of Section “D” of the Criminal District Court for the Parish of Orleans. It is alleged that Negroes were unlawfully, systematically and unconstitutionally excluded from the all white Grand Jury which indicted the defendant, a Negro, contrary to Section 1 of the Fourteenth Amendment to the Constitution of the United States.

The method of selecting the Grand Jury in Louisiana is set forth in LSA-R.S. 15 :- 191, 15 :194 and 15 :196. They provide for the appointment of a Jury Commission, composed of three members, by the Govern- or of the State. This Commission selects a list of names, not less than seven hundred and fifty, from all sources available —telephone directory, recommendations of corporations, city directory, recommendations of business executives — and places them in a general wheel. The record discloses that a sincere effort is made to include the names of Negroes in this list. Twice a year the Commission draws seventy-five names from the wheel and sends them to the Judge of the Criminal District Court whose turn it is to select a Grand Jury. There are eight divisions of the Criminal District Court for the Parish of Orleans, and each Judge has his turn in rotation to select a Grand Jury. The seventy-five names are indiscriminately drawn from the wheel as are a larger number of names for the Petit Juries. Each name bears information as to the person's occupation and address, but no mention is made as to race or color. In the matter herein involved, the list of seventy-five names contained the names of six Negroes.

The Judge selecting the Grand Jury is empowered to use his own discretion in selecting the twelve members. From the evidence of record, we find that the majority of the Judges interviewed a large number of the seventy-five persons listed be-for making a selection of a Grand Jury. Judge Frank T. Echezabal, who selected this contested Grand Jury, testified that he had been a Judge of the Criminal District Court for the Parish of Orleans since 1921 and stated:

“* * * I select those whom I believe are best qualified to serve on the grand jury and when I select them I don’t know whther they are negroes or persons of the Caucasian race. I make no distinction sir. I would not exclude from my grand jury merely on account of race. I would not and I have never done it.”

With respect to qualifications, Judge Echezabal said he considered—

“Good character, citizenship, availability and education to serve as grand jurors, because there are some men although they have a very good educational background, on account of temperament are not qualified to act either as petty or grand jurors.”

The record undeniably discloses that in selecting the instant Grand Jury composed of all white persons, which served six months and indicted many persons other than the defendant, white and colored, Judge Echezabal did not abuse his discretion when he chose those he thought most qualified to serve and did not include any of the six Negroes which had been presented to him. State v. Dorsey, 207 La. 928, 22 So.2d 273.

The record discloses no systematic exclusion of Negroes from the Grand Jury. The only reason Negroes were not selected to serve was that the Judge selecting the Grand Jury thought that the white persons selected were better qualified.

In the recent case of Reece v. State of Georgia, 349 U.S. 944, 75 S.Ct. 877, 99 L. Ed. 1270; 350 U.S. 85, 76 S.Ct. 167, 169, 100 L.Ed. 77; 211 Ga. 339, 85 S.E.2d 773; 350 U.S. 943, 76 S.Ct. 297, 100 L.Ed. 822, the United States Supreme Court laid the following predicate:

“This Court over the past 50 years has adhered to the view that valid grand jury selection is a constitution-: ally protected right. The indictment of a defendant' by a grand-jury from which members of his race have been systematically excluded is a denial of his right to -equal protection of the laws. Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839. Where no opportunity to challenge the grand-jury selection has been afforded a defendant, his right may be asserted by a plea in abatement or a motion to quash before arraignment, United States v. Gale, 109 U.S. 65, 72, 3 S.Ct. 1, 6, 27 L.Ed. 857. Of course, if such a motion is controverted it must be supported by evidence, Patton v. State of Mississippi, supra; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497.”

We believe that defendant’s, motion to quash has been sufficiently controverted by evidence which proves his statements to be false. The pattern of proof was established in the case of Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. There the United States Supreme Court held that the Court could not accept the mere statement of officials as to the performance of their duties but must actually examine the records to determine whether there had been a deliberate exclusion of Negroes from jury service.

The record in this case shows that the Negro population in the Parish of Orleans is approximately 30%. The evidence also shows that in selecting the 750 names to be placed in the 'general wheel, the Jury Commissioners made a deliberate attempt to include the names of Negroes, without proportionately limiting their number. Walter E. Douglas, Jr., Jury Commissioner from 1942 through 1948, stated that he attempted to secure names through the Housing Authority and subpoenaed many Negroes. His successors, Dudley Desmare and V. G. Warner, followed the same practice. The facts show that the names of many Negroes have been in the general wheel at all times.

The case of State v. Dorsey, 207 La. 928, 22 So.2d 273, 281, — relying on the case of Commonwealth of Virginia v. Rives, 100 U.S. 313, 322, 25 L.Ed. 667 — held that a mixed jury in a particular case is not essential to the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. We stated:

“* * * defendant complains that there was no Negro on the grand jury that found the indictment, and alleges that there has not been a Negro on a grand jury in the Parish of Orleans for a period of 25 years. Under the facts in this case, this complaint simply means that defendant is claiming the right to have a jury composed in part of members of his own race. This we do not understand to be the law. So to hold under the facts in this case would be tantamount to saying that it was the mandatory duty of the district judge to place on the grand jury which found the indictment the member of the colored race who was on the jury panel.”

Bill of Exceptions No. Two, incorporated herein, was taken to the refusal of the trial judge to permit the Clerk of the United States District Court to testify as to the method of selecting the Federal Grand Jury.

We believe that the trial judge was correct, as only the method of selecting the Orleans Parish Grand Jury, a Louisiana State Grand Jury, was involved.

Bill of Exceptions No. Three was to the same effect.

Bill of Exceptions No. Four was taken to the refusal of the trial judge to permit Honorable William J. O’Hara, a Judge of the Criminal District Court for the Parish of Orleans, to answer the following question:

“Do you feel, (it is assumed by your answer to the last question), but I would like to ask you whether you feel the selection of the Grand Jury since 1932 and up to the last Grand Jury was an improper method?”

The trial judge was correct. The instant Grand Jury was under consideration, and the alleged denial of equal protection of the laws depended upon the facts of this particular case. State v. Green, 221 La. 713, 60 So.2d 208.

Bill of Exceptions No. Five is to the same effect.

Bill of Exceptions No. Six was taken to the refusal of the trial judge to testify as to his method of selecting a grand jury. He was correct, because he could not act both as a judge and as a witness.

Bills of Exceptions Nos. One through Six have been adjudged on the facts of the case, and, as stated above, we do not find that the judge abused his discretion in selecting the Grand Jury. Therefore, the bills are without merit.

Bill of Exceptions No. Seven was taken to the ruling of the trial court in admitting in evidence a picture of the deceased taken after the murder was committed. Counsel contends that the defendant was prejudiced, because the picture was gruesome, inelegant and inflammatory.

Relying on the case of State v. Sears, 220 La. 103, 55 So.2d 881, the trial judge stated in his Per Curiam that he permitted the picture to be introduced in evidence, because, in his opinion, there was nothing gruesome or revolting about the picture.

The jury was considering the crime of murder, and the picture was that of the deceased after the commission of the crime. It was helpful to the State in presenting its evidence, and we do not find that it is of such a nature as to have prejudiced the jury. Under these circumstances, there is no merit to the bill.

Bill of Exceptions No. Eleven was taken to the refusal of the trial judge to grant a mistrial after a State’s witness, Detective Stevens, on cross-examination, made the following response to the question of whether the name of another person had been mentioned:

“No, sir, I believe I told you that name. I received a call from Mr. Hubert to the effect the defense in this case indicated Eubanks had an accomplice.”

Defendant’s counsel contends that Officer Stevens’ remark had the effect of placing in the jurors’ minds the thought that counsel believed his client guilty.

In his Per Curiam to this bill, the trial judge correctly stated:

“I refuse to order a mistrial because the witness on cross-examination by counsel for the defendant made the remark complained of on his own volition and was not detrimental to the cause of the defendant. However, I did instruct the petty jury to disregard the remark made by the witness as never having been made.
“I see no harm or error in this bill.”

The ruling in the case of State v. Martin, 193 La. 1036, 192 So. 694, to the effect that the trial for a criminal offense cannot be defeated or nullified by the act of a witness in making a statement which he should not make and for which the prosecution is not responsible, is applicable to the present case. See, also, State of Louisiana v. Labat, 226 La. 201, 75 So.2d 333; and State v. Barbarian, 225 La. 89, 72 So.2d 306. The trial judge instructed the jury to disregard the testimony, and we cannot see that the defendant was prejudiced in any manner. There is no merit to the bill.

Bill of Exceptions No. Fourteen was reserved when the trial court sustained the State’s objection to two questions propounded to Mr. Frank Valentinien, a witness for the defense. These questions related to the reasons a fellow employee of the defendant gave to his employer for quitting his job on the day of the crime. The testimony would have been hearsay, which is inadmissible in a criminal proceeding, except in certain instances not here involved. The court was, therefore correct in sustaining the objection.

Bill of Exceptions No. Seventeen was reserved when the trial judge refused to give the jury the following charge:

“Your defendant, herein, Freddie Eubanks, respectfully presents through his undersigned counsel, to this Honorable Court before the argument has begun, the following written charge, and respectfully requests that the same be given the Jury herein by this Honorable Court, to-wit:
“If the evidence in this case that the negro male, Robert Taylor alias Geraldine, alias Gay Boy alias Gloria Lopez, or that the negro male Henry Allain killed Mrs. Clarkson, or that a strange man whom she had invited to her room killed Mrs. Clarkson, combined with any other evidence in the case leaves you with a reasonable doubt that the defendant, Freddie Eubanks committed this crime, then the law makes it your duty to find the defendant, Freddie Eubanks, not guilty.”

Bill of Exceptions No. Eighteen was reserved when the trial judge refused to give the following similar charge:

“If the evidence in this case that the negro male, Robert Taylor alias Geraldine, alias Gay Boy, alias Gloria Lopez, killed Mrs. Clarkson without the aid and assistance of the defendant, Freddie Eubanks, combined with any other evidence in the case, leaves you with a reasonable doubt that the defendant Freddie Eubanks committed the crime, then the law makes it your duty to find the defendant not guilty.”

We have carefully read the general charge of the trial judge to the jury, which is in writing and made a part of this transcript. It is an exhaustive statement of the law relative to the crime with which the defendant was charged, and it covers the matter referred to in the requested charges above quoted. The trial judge does not commit error in refusing to give special charges which are covered by his written general charge to the jury. State v. Sears, 220 La. 103, 55 So.2d 881; State v. Fuller, 218 La. 872, 51 So.2d 305; State v. Robinson, 221 La. 19, 58 So.2d 408; State v. Matassa, 222 La. 363, 62 So.2d 609.

There is no merit to Bills of Exceptions Nos. Seventeen and Eighteen.

Bills of Exceptions Nos. Nineteen and Twenty-One were taken when the trial judge refused to give a special charge to the jury relating to innocence and a special charge relating to circumstantial evidence. The matter was covered in the general charge, and there is, therefore, no merit to Bill of Exceptions No. Nineteen.

In refusing to give the requested charge with respect to circumstantial evidence, the trial judge stated that it did not apply to the facts of the case. A review of the testimony attached to the Bills of Exceptions and the written confession included in the transcript convinces us that the State was depending upon direct evidence to establish defendant’s guilt and prove its case against him. Under these circumstances, the trial judge did not abuse his discretion in refusing to give the charge. State v. Gordon, 115 La. 571, 39 So. 625.

Bill of Exceptions No. Twenty-Two was reserved when the trial judge refused to give the jury the following charge:

“A legal presumption relieves him in whose favor it exists from the necessity of any proof; but it may none the less be destroyed by rebutting evidence, such is the presumption that evidence under the control of a party and not produced by him was not produced because it would not have aided him.”

Counsel for the defendant contended that since the State had subpoenaed Mrs. S. K. Rose as a witness and did not call her to testify, it must be presumed that her testimony would not have aided the State in its case.

In refusing to give the charge, the trial judge stated in his Per Curiam that it was not applicable to the facts of the case. LSA-Revised Statutes 15:390 provides:

“The prosecution and the defense have each the right to present to the court, before the argument has begun, any written charge or charges, and request that the same be given. Except as otherwise provided herein, the judge must give every such requested charge that is wholly correct and wholly pertinent, unless the matter contained in such charge have been already given, or unless such charge require qualification, limitation or explanation.”

The charge requested would have required explanation and qualification, because the witness was called by the defense even though the State did not see fit to elicit her testimony. To draw an inference that the witness’s testimony would not have aided the party subpoenaing her, the particular circumstances must be examined. State v. Johnson, 151 La. 625, 92 So. 139. An examination of the testimony attached to the Bill discloses that the testimony elicited by defendant’s counsel was not in aid of the State. There is also in the transcript a statement by the District Attorney that he was willing to admit the presumption. Under these circumstances, there was no prejudice to the defendant and the charge was not necessary for the jury’s deliberation. Therefore, there is no merit to the Bill.

Bill of Exceptions No. Twenty-Three was taken to the refusal of the trial judge to give the following charge to the jury:

“The Court charges you, gentlemen, that the flight of a suspect, or escape, taken alone, does not raise a legal presumption of his guilt, but, if proven, are merely facts in the case to be taken into consideration by you gentlemen in connection with all the other facts in the case in determining whether there is a reasonable doubt that the defendant, Freddie Eubanks committed the crime charged, under the theory that another person actually committed the alleged crime without the aiding and abetting of the said Freddie Eubanks, and that that other individual did flee, and/or escape, and has not to date been apprehended, if you believe these to be the facts.”

The trial judge stated that the charge was not applicable to the facts of the case. The judge was correct in his ruling, because an examination of the testimony attached to the numerous bills shows no direct connection between an escaping party and the crime committed.

Bill of Exceptions No. Twenty-Five was reserved to the refusal of the trial judge to grant the defendant a mistrial after the Court made the following statement to Detective Stevens:

“You cannot assume a fact to be proved that has not been proved. There is no evidence in the record this man, you say, departed the city of New Orleans at all. He doesn’t know that.
“Do you?”
“No, sir.”

Counsel for the defendant contends that the remark of the trial judge was a comment on the evidence, contrary to LSA-Revised Statutes 15:384.

As we have previously stated, there was no connection made in the proof of this case between an escaping party and the crime committed. After examining the particular facts of this case, we cannot find that the defendant was prejudiced by the remark of the presiding judge. Article 557 of the Criminal Code, LSA-Revised Statutes 15:557 provides:

“No judgment shall be set aside, or a new trial granted by any appellate court of this state, in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”

We do not find any violation of defendant’s rights nor a miscarriage of justice, and there is, therefore, na merit to the bill. State of Louisiana v. Nicolosi, 228 La. 65, 81 So.2d 771.

Along with his plea of not guilty, the defendant entered a plea of not guilty by reason of insanity. During the course of the trial, Dr. C. S. Holbrook, a psychiatrist appointed by the court, was questioned as to whether an individual is normal, who commits a brutal crime as was committed on the deceased and then falls asleep. Dr. Holbrook was then asked the following hypothetical question:

“Doctor, assuming the same situation, though not admitting anything of course, and assuming that the infliction of the wounds included multiple abrasions and contusions and lacerations of skin of the scalp, face, neck and hands, fracture of the nose and skull, lacerations and contusions of the brain, subdural and subarachnoid hemorrhage, stab wound of the right chest with penetration of the right upper lobe of the lung, hemothorax right, laceration of the posterior and anterior wall of the vagina, would your answer be the same?”

The trial court sustained the State’s objection to the question, and counsel for the defendant reserved Bill of Exceptions No. Thirty.

Ordinarily, experts are permitted to testify as to their opinions concerning matters within their specialized training. LSA-R.S. 15 :464. Dr. Holbrook testified during the course of the trial to the effect that he thought that the defendant was mentally defective. His extensive testimony was before the jury, and the exclusion of an answer to one hypothetical question could not deprive the defendant of any constitutional right. The exclusion of testimony does not constitute reversible error, if the witness gave the same testimony at another time during the trial. State v. McCollough, 149 La. 1061, 90 So. 404; State v. Zeigler, 184 La. 829, 167 So. 456.

Bills of Exceptions Nos. Thirty-One and Thirty-Two were reserved when the trial court denied a motion for a new trial and a motion in arrest of judgment. These bills present nothing new for our consideration and are, therefore, without merit. State of Louisiana v. Mills, 229 La. 758, 86 So.2d 895; State v. Weber, 221 La. 1093, 61 So. 2d 883; State v. Rone, 222 La. 99, 62 So. 2d 114; State v. Coffil, 222 La. 487, 62 So. 2d 651.

For the reasons assigned, 'the conviction and sentence are affirmed.