Opinion
No. 29790.
April 22, 1929. Rehearing Denied May 20, 1929.
Appeal from Fourteenth Judicial District Court, Parish of Beauregard; Jerry Cline, Judge.
Mun Henderson was convicted of arson, and he appeals. Affirmed.
Ped C. Kay, of De Ridder, for appellant.
Percy Saint, Atty. Gen., John J. Robira, Dist. Atty., and S.H. Jones, Asst. Dist. Atty., both of Lake Charles; and E.R. Schowalter, Asst. Atty. Gen., for the State.
The defendant was charged with committing arson by burning a pile of lumber of a greater value than $25, the property of another person. Act 211 of 1928, § 3. On the trial of the case he was found guilty as charged, and has appealed from his conviction and the sentence imposed in pursuance thereof. In support of his appeal defendant relies on three bills of exception.
Bill No. 1. The bill was reserved to the action of the trial judge in admitting, over defendant's objection, the testimony of the prosecuting witness that he had arrested defendant for violating the game laws on the day preceding the night on which his lumber was burned.
We do not find any error in the ruling complained of. The evidence in the case was wholly circumstantial. The testimony in question was admitted in connection with other testimony showing that defendant at the time of his arrest exhibited anger towards the arresting officer, for the purpose of establishing motive. In cases of circumstantial evidence motive is a circumstance bearing on the identity of the accused as the perpetrator of the crime, and evidence tending to show motive on his part is relevant and admissible. 16 C.J. § 1048, p. 547.
Bill No. 2. The prosecution proved that on the same day and immediately after defendant's arrest his automobile marked "For Sale, $40.00" was found by a deputy sheriff in a garage in the town of Oberlin. In explanation of this, defendant and his brother-in-law testified that the latter had "stood good" for the price of two tires, and, after defendant's arrest, took the car to the garage to be sold in order to pay for the tires. These facts were not disputed. Defendant, however, sought to prove the instructions given by him to his brother-in-law, in whose custody the car was placed. The testimony was excluded by the trial judge upon objection by the state that it was hearsay and a self-serving declaration. Defendant excepted to the ruling and reserved this bill. The ruling was correct.
Bill No. 3. This bill was reserved to the overruling of defendant's motion for a new trial. The general grounds assigned in the motion as entitling defendant to the relief prayed for are: (1) That the verdict is contrary to the law and the evidence; (2) that the bills of exception reserved during the trial disclose prejudicial error; and (3) that errors and defects occurred during the trial and since the verdict which have prejudiced the defendant.
1. Defendant contends that the trial Judge erred in refusing to permit him to introduce proof on the allegations of his motion setting out that the evidence on the part of the state was wholly circumstantial and that the verdict of the jury was contrary to the law and the evidence. In support of his contention he relies on Crim. Code, art. 507, p. 110, reading as follows, viz.:
"Every motion for a new trial must specify the grounds upon which relief is sought, must be tried contradictorily with the district attorney, and the proof must correspond with the allegations of the motion."
Defendant specifies, in his motion, the errors of fact complained of and argues that under the quoted provisions of the code this court now has the right to review and pass upon those facts. The argument is not sound. The inhibition upon the Supreme Court to review the facts found by the jury or by the judge in a criminal case is constitutional; hence, it cannot be abrogated by a mere legislative enactment. Obviously, the proof referred to in the codal provision is the proof of such facts only as may be legally inquired into on a motion for a new trial.
2. This ground of complaint has been considered and disposed of in the discussion of the bills of exception to which reference is made in defendant's motion.
3. Defendant avers that his conviction should be reversed because he was not present in the courtroom during a portion of the argument to the jury by the district attorney.
The record shows on this phase of the motion for a new trial that the defendant, without the knowledge of the court or of any of its officers, left the courtroom for a necessary purpose during the argument of the district attorney; that, as soon as his absence was discovered, proceedings were stayed, and upon his return to the courtroom, which was after a lapse of three or four minutes, his counsel declared that the irregularity was waived, and that no advantage would be taken of the incident.
The defendant was under bond, and it is not contended or shown that his absence, which was voluntary, resulted in any injury to him. In fact, it was considered of so little importance at the time, that defendant, through his counsel, expressly disclaimed any intention to avail himself of it. There is no merit in defendant's contention. State v. Ricks, 32 La. Ann. 1098, State v. Perkins, 40 La. Ann. 210, 3 So. 647.
4. Defendant complains that, after the jury had retired to deliberate, they requested additional instructions which were given to them through the deputy sheriff and not in open court as the law requires. On this point, the record discloses that the deputy sheriff, at the request of the jury, inquired of the trial judge as to the minimum penalty that could be imposed in the case; that in reply to the inquiry the trial judge stated, in effect, that the penalty was not the affair of the jury and that he could not furnish them with the information requested; that the trial judge immediately informed defendant's attorney of what the deputy sheriff had asked him and what his answer had been. No objection nor request of any kind was made by defendant or his attorney. Defendant's complaint, if there was any virtue in it at all, came too late. Such complaints can only be made and embodied in bills of exception reserved when the special instructions requested by the jury are given or refused. Marr's Crim. Juris. (2d Ed.) § 685.
5. Defendant, in his brief, argues that the indictment is defective in that it does not set out any crime known to the law. No allegation or contention to that effect appears anywhere in the record. The third section of paragraph 3 of the motion for a new trial, under which the argument is made, merely contains a general allegation of prejudicial error committed during the trial and after the rendition of the verdict. The argument, therefore, is not pertinent to the issue raised by the proceedings.
For the reasons assigned, the verdict and sentence appealed from are affirmed.
O'NIELL, C.J., dissents from the ruling on bill No. 2.