source: Caselaw Access Project

author: Provosty, J.

license: Public Domain

text:
    No. 14,168.
    State of Louisiana vs. Nathaniel Weston.
    Syllabus.
    1. .The time for urging objection to the charge of the judge to the jury is before the retirement of the jury. Such objections, if urged for the first time on motion for new trial, will not be considered by this court.
    2. The grounds of such objections must be stated, so as to inform the trial judge of the nature of the objection and afford him an opportunity to rectify the matter complained of. The degree of particularity required in stating tnese grounds will depend upon whether the objection is based purely on law or partly on facts. To challenge the correctness of a legal proposition involved in a charge, it is sufficient to point out the particular part objected to and to say that it is not a legal charge; but to challenge the correctness of a charge because of its inapplicability to the facts, or because of its not stating the law with sufficient fullness, or in terms suitable to adapting it to the facts of the particular case, the respects in which the charge is deficient must be specified.
    APPEAL from the Twenty-Fourth Judicial District, Parish of West Feliciana — Kilboume, J.

      Walter Guión, Attorney-General, and Robert C. Wichliffe, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Samuel McO. Lawrason, for Defendant, Appellant.
   The opinion of the court was delivered by

Provosty, J.

This case is before us on two bills of exception. The first to a part of the charge to the jury, and the second to the refusal of a new trial.

It is contended in behalf of the State that the objection embodied in the first bill cannot be considered by us because, so far as the bill shows, the grounds of it were not stated at the time that it was made. Such is the rule, the grounds or reasons o'f an objection must be stated; an objection cannot be efficiently made in general terms; the idea being that the trial judge should be fully informed of the nature of the objection, in order that he may be afforded an opportunity to correct his charge if erroneous; and this to rvoid the setting aside of verdicts for matters which could and probably would be rectified if properly and timely called to the attention of the judge. State vs. Callahan, 9 Ann. 210; State vs. Chopin, 10 Ann. 458; State vs. Beaird, 34 Ann. 105; State vs. Smith, 35 Ann. 543; State vs. Melton, 37 Ann. 77; The Francis Wright, 105 U. S. 389.

The bill reads, as follows:

“Be it remembered that on the trial of the defendant, Nathaniel Weston, for manslaughter, in this cause, the evidence on the part of the State having been affirmative in character, and that on the part o'f the defence negative in character, the court charged the jury as part of the instructions given them for determining the guilt or innocence of the accused, the defendant herein, that affirmative evidence was rather to be believed than negative evidence when witnesses testifying to affirmative and negative facts are equally reliable, and were shown to have had equal opportunities for observation. To which part of the charge defendant by counsel objected as prejudicial to the defendant, and not a legal and proper charge to the jury, though the court had also charged in connection with said part of the charge objected to “ — that the jury were the sole and exclusive judges of the evidence, and that it was the duty of the jury to weigh the testimony of all witnesses, and that it was in the province o’f the jury to accept or reject all or any part of the testimony of any witness, and that it was for the jury to judge of the credibility of witnesses'’
That defendant’s objection was overruled by the, court, and said ruling seasonably and at the time excepted to, and the present bill of exceptions to said ruling, and .to the part of the said charge excepted to, duly reserved, and which is now re speetfully presented to the court for signature, by defendant, through his counsel.
S. McO. Lawrason,
Charles Kjlbourne, Judge."

The only grounds of objection bore stated are that the charge is prejudicial and not a legal and proper'charge; and the question is whether this was a sufficient statement of the grounds of objection.

We think that in considering the degree of particularity with which grounds of objection must be s..ated a distinction should be made, in the first place, between an objection founded purely on law and an objection founded partly on facts; examples of the latter kind being objections to the admission of evidence, and1 objections to a charge because of its inapplicability to the facts of the case: and, in the second place, between an objection to the correctness of the legal proposition involved' in the charge of the court, and an objection not to the correctness of the legal proposition, but to the adequacy or aptness of the terms made use of by the court in expressing it. The judge is presumed to know the law, and ■ therefore, the correctness of a legal proposition involved in a particular part of his charge is fairly challenged by a mere pointing out of the particular part of the charge and a statement that it ■ is not legal; but he is not presumed to know the facts, and is not presumed to be infallible in the aptness or sufficiency of the terms made use of by him in stating legal propositions, and therefore objections founded partly on facts, ■ or founded on the inadequacy jof the terms made use of in stating the law on the particular point involved, should specify the grounds on which complaint is made.

Yiewing the'instant case, in the light of this distinction, we think that the grounds of objection were sufficiently stated to challenge the correctness of the legal proposition involved in the charge, but were not sufficiently stated to call the atent:on of-the judge to any error resulting from the inapplicability of the proposition to the facts of the ease, or from the inadequacy of the terms -made use of in stating the law on the particular point involved.

Taking the charge as a whole, we can see in it no error of law; it is not incorrect to say that “affirmative evidence is rather to be believed than negative evidence when witnesses testifying to affirmative and negative facts are equally reliable, and ■ are shown to have had equal opportunities for observation;” (State vs. Chevallier, 36 Ann. 84; State vs. Dorsey, 40 Ann. 742); and also it is not incorrect to say “that the jury are the sole and exclusive judges of the evidence, and that it is the duty of the jury to weigh the testimony of all witnesses, and that it is the province of the jury to accept or reject all or any part of the testimony of any witness, and that it is for the jury to juage of the'Credibility of witness.”

The charge may be objectionable in that it does not explain what is meant by negative evidence as contradistinguish* d frofn affirmative evidence; and it is possible that the witnesses g ring negative testimony had not only enjoyed equal opportunities for ffiservatlon, but had exercised the opportunities, so that under the do trine ’of the cases of Chevallier and Dorsey, cited above, their testimony was entitled to equal weight with the affirmative testimony; but if in these respects, and in the other respects specified in defendant’s second bill, the charge was defective and objectionable, these were matters which the trial judge could have rectified if his attention had been called to them, and which the defendant cannot take advantage of, he having failed to call the judge’s attention to them.

The motion for new trial was based- on the same alleged error in the charge. In this motion the grounds of objection to the cha ge are stated to be that the charge was objectionable in that it “was misleading in that a among other things it eliminated from consideration the probability or. improbability of affirmative or negative evidence, and the number of witnesses supporting the affirmative and negative statements respectively, and that such a charge trenched on the province of the jury as sole judges of the facts, and though inadvertently amounted to a hint of the court’s preference for affirmative testimony; and prejudiced defendant whose defence was based on the negative testimony of many witnesses, in itself probable — said witnesses being State as well as defendant’s witnesses; and the case of the State supported by the positive testimony of only one witness not positively discredited.”- It is needless for us to enquire whether these grounds were good or not, they not having been urged timely, that is, before the retirement of the jury. It is well settled that objections to a charge must be urged before the retirement of the jury and cannot be urged afterwards. State vs. Ryan, 30 Ann. 1176; State vs. West, 45 Ann. 928; State vs. Walker, 39 Ann. 19. See also the cases cited in the first part of this opinion.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed at the costs of the appellant.


author: Breaux, J.

text:
    No. 14,260.
    State ex rel. Walter Teague vs. Hon. Ben P. Edwards, Judge Third Judicial District Court.
    Syllabus.
    The statute clearly provides that no one shall be prosecuted for any fine unless the prosecution be instituted within six months of the time of incurring such fine, and does not admit of a delay within which to institute proceedings, as in case in which one is prosecuted for an offense barred by the prescription of twelve months from the time the crime is made known to an officer having authority to direct the prosecution.
    The recovery of the fine is absolutely prescribed in six months from the time the fine was iricurred and is not negatived by the averment in the information that it was filed within six months after the commission of the act was made known to an officer authorized to prosecute.
    ^ PPLICATION for Writs of Prohibition and Certiorari.

      Richardson & Richardson, for Relator.

      Walter Guión, Attorney-General, and John C. Theus, District Attorney, (Lewis Guión, of Counsel), for Respondent.
   The opinion of the court was delivered by

Breaux, J.

Relator contending that the prescription of six months bars a prosecution for a fine absolutely, asks that the Judge of the District Court be prohibited from enforcing the judgment of the court against the relator, and he further asks to be discharged, and that his bond be cancelled.

" The fa'ets are these: A charge was preferred against the relator, Teague, by information of the District Attorney, for retailing intoxicants without a license. The information was filed on the 2nd of December, 1901;-'on-the day-that the information was filed the defendant, relator here, was tried and convicted. He then applied for a new trial which was not granted. He was condemned to pay a fine of one hundred dollars and costs, or to work the public works. Not having the right of appeal he sues for the interposition of this court’s authority in his behalf, under its supervisory jurisdiction.

The Judge of , the District Court in his answer to the preliminary order issued, states that the bill of information contained the averments, viz.: that the offence charged was not within the period fixed by the statute, made known to an officer authorized to direct a prosecution; and he adds, that, the defendant, relator here, offered no evidence whatever to traverse this allegation. More than eight months had intervened between the day the act was charged to have been committed and the day that the information was filed.

Defendant’s and relator’s contention is that under R. S. 986 there are two terms of prescription;-that the first term, the twelve months’ prescription can be negatived, but that it is different as to the six months term of prescription, for the reason that the statute contains special provision applying to the first, and not to the second or six months term of prescription.

We are called upon to determine whether the District Judge erred in overruling the plea of prescription invoked by the defendant.

We think that the plea should have been sustained. The statute of 1855, Number 121, embodied as to prescription in Article 986, of the Revised Statutes, provides, that, prosecutions are to be brought within cne year after the offence has come to the knowledge of a public officer; murder, arson, robbery, forgery and counterfeiting excepted.

This provision is in itself complete. It applies to all offenses barred by the prescription of twelve months. Immediately after, in another and complete sentence of the section of the statute, it provides, viz.:

' ‘’‘Nor shall any person be prosecuted for any fine or forfeiture unless the prosecution be instituted within six months from the time of incurring such fine or forfeiture.”

.This is an action for the recovery of a fine and six months governs the prescription. We have searched in vain for a provision of law which would justify the conclusion that.the words, “Within ,one year next after the offense shall have been made'kiiown to a public officer” bears application to the prescriptoin of six months. The language of the .statute is plain enough as related to 'fines and forfeitures, that is, that they are barred by prescription of six months from the time of incurring such fine or forfeitures.

We have carefully examined the articles of the Eevised Statutes and the amendments made by Statute 50 of 1894, and noted the repetition in each of the special provisions relative to preseritpion. without any changes as related to the prescription of six months.

The words of the 'statute, viz.: “Nothing herein contained shall extend to any person absconding or fleeing from justice” evidently refers to both classes of crime; that embraced within the twelve months’ prescription and that embraced within the six months’ prescription, for it is inserted after and follows both. But it is different as relates to the prescription of twelve months; the provision precedes the limitation-applying to fines and forfeitures and under no rule of construction the words referring to the former crimes subject to the “Twelve months prescription from the date of the offense was made known to an officer” can be held as applying to the provision following limiting the time as relates to fine or forfeiture to six months. Antecedents are not to be extended to what follows unless clearly so intended. Gast vs. Assessors et al., 43rd Ann. 1104.

We can conceive of no good reason why the language of the section just referred to must be taken and construed in connection with the language of the section just preceding in which it is announced that prescription does not run until the commission of the offense has been made known to an officer having the power to direct an investigation and prosecution. That construction would be in direct opposition to the positive terms limiting the time to six months when a fine has been imposed or a forfeiture decreed.

We are not of the opinion that the prescription can be negatived by averments which,, in words not to be misunderstood, apply only to crimes and offenses prescribed by twelve months-from the.time before mentioned. We would not be warranted in holding that a rule applying to the prescriptive period of twelve months applies to the prescriptive-period of six months as well. One, by the language of the law is placed on a different footing from the other, for, we presume, sufficient reasons. The latter is of a less serious nature and the law-making power may have intended, not to subject it to delays as relates to the possibility of prosecution, but to make it subject to prescription to be computed, as to time, from the day the act charged was committed.

These being our views, it only remains for us to make the writs of prohibition and certiorari perpetual, sustain the plea of prescription of six months as barring all proceedings against defendant, set aside the verdict and sentence; order the accused to be released and his bond cancelled, and it is accordingly so ordered, adjudged and decreed.