(100 So.)
at some distance from tents where both slept,
and it appeared that accused was aggressor.
8. Criminal law 829(1)-Requested special
charge covered by given charge properly re-
fused.

(Supreme Court of Louisiana. May 5, 1924. Rehearing Denied by the Whole Court June 6, 1924.)

(Syllabus by Editorial Staff.)

1. Homicide 156(2)-Declaration of accused shortly after shooting held admissible on issue of malice.

Statement of accused one hour after shooting that, if his pistol had not hung fire, deceased would not now be "taking on," was admissible on issue of malice.

A special requested charge was properly refused where covered fully by general charge. 9. Criminal law 1091(10)-Improper argument of counsel not considered in absence of showing of request for ruling by court.

Appellate court will not consider complaint as to argument of counsel, where bill of exceptions does not show that trial judge was asked for ruling and exception taken to such ruling. 10. Criminal law 1144(10)-Ordinarily presumed that prejudicial effect of improper argument removed by instruction of court. 2. Criminal law 1121(1)-Statement as to Except in extreme cases, presumption is hostile demonstration by deceased in per cuthat prejudicial effect on jury of improper reriam to bill of exceptions held conclusive. Where there is in record no evidence what-marks made by counsel was removed by instrucever on subject of overt act or of hostile dem- tions of court to jury to disregard them. onstration, or as to who was aggressor, statement of trial judge in his per curiam to bill, as to facts concerning such questions, is conclusive. 3. Homicide 319-Court held not to have abused discretion in denying new trial for newly discovered evidence.

Trial judge held not to have abused discretion in denying new trial for newly discovered evidence alleged to be that witness would swear that few minutes before difficulty he heard deceased and two of state's witnesses planning to whip defendant and that deceased asked witness for a knife to use against defendant, witness not having informed defendant of facts until motion for new trial, eight months after killing, evidence showing that defendant was aggressor.

4. Criminal law 1156(3) Denial of new trial for newly discovered evidence not disturbed unless manifestly erroneous.

Ruling in denying motion for new trial for newly discovered evidence will not be disturbed unless manifestly erroneous.

5. Homicide 190(1)-Evidence of threats by deceased, few minutes before killing, held inadmissible.

Where evidence showed that accused was aggressor, evidence of threat made to third party against accused by deceased, few minutes before killing, no attempt being made to carry it out, held inadmissible.

6. Criminal law 945(1)—-New trial properly denied where alleged newly discovered evidence weak and unsatisfactory.

Appeal from Fifteenth Judicial District Court, Parish of Beauregard; W. W. Bailey, Judge.

was

George Poole convicted of manslaughter, and appeals. Affirmed. Elmer L. Stewart, of De Ridder, for appellant.

A. V. Coco, Atty. Gen., Griffin T. Hawkins, Dist. Atty., of Lake Charles, John J. Robira, Asst. Dist. Atty., of Jennings, T. S. Walmsley, of New Orleans, and A. J. Bordelon, of Marksville, for the State.

BY DIVISION C, composed of OVERTON, ST. PAUL, and THOMPSON, JJ.

ST. PAUL J. The defendant was indicted for murder, and convicted of manslaughter. His appeal presents 11 Bills of Exception; as follows:

Bill of Exception No. 1.

[1] Willie Cole was permitted to testify that about an hour after the shooting the accused told him (the witness) that if his (the accused's) pistol had not hung fire the deceased would not now (then) be "taking on." This was objected to as not being the whole conversation on that subject. But It was also obthe witness says it was. jected to as not being part of the res gestæ, and as irrelevant. But the trial judge says the evidence showed that when the deceased was shot he staggered backwards a step or two and fell to the ground mortally wounded; that the defendant did not contend in 7. Homicide 300(11)—Instruction concern-his testimony that it was at all necessary ing duty to retreat when attacked at home or place of residence held properly refused. Court properly refused to give special charge that person attacked at his home or place of residence is not forced to retreat, where homicide took place at a camp where both deceased and accused were employed and evidence.

There was no error in denying a new trial for newly discovered evidence where proffered evidence was too weak and unsatisfactory to have likely changed result of jury's finding.

for him to continue shooting in order to protect himself from any harm whatever; and, accordingly, his own admission that he would have continued the shooting under the circumstances was certainly admissible in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

There was no error in this ruling. "Dec-| larations by defendant after the fatal affray showing his hostility to the deceased are admissible in evidence on the issue of malice. Acts or conduct showing such continued hostility are also admissible." 30 Corp. Juris, 159, 160.

Bills of Exception Nos. 2 to 8. These seven bills were reserved to rulings by the trial judge excluding evidence of alleged threats made by the deceased against the accused and communicated to the latter.

This evidence was excluded by the trial Judge "because it was not shown that any overt act or hostile demonstration had been committed by the deceased, and because the evidence showed beyond a doubt that the accused was the aggressor."

[2] The trial judge says in his per curiam to bill No. 9 (referred to in these bills) that the accused alone testified that the deceased advanced upon him with a knife and a stick; that the eyewitnesses to the shooting testified that the deceased had a small cypress stick in one hand; that he had no knife in either hand, and had both hands down; that he at no time raised his hand or the stick on the accused, either before or after the shooting.

In State v. Sandiford, 149 La. 934, 90 South, 267, this court said:

"Defendant has failed to lay the proper foundation for the admission of prior threats, by failing to show by a preponderance of evidence that the deceased made a hostile demonstration against him of such a nature as to justify him in believing that his life was in danger or that he was in danger of great bodily harm, and therefore proof of prior threats, for all purposes for which they are admissible, was properly rejected. State v. Williams, 111 La. 212, 35 South. 521; State v. Thomas, 111 La. 806, 35 South. 914. Mere evidence of such threats [hostile demonstration], as distinguished from proof thereof, is insufficient. When the question arises as to whether a sufficient foundation has been laid for the admission of such evidence, the question is one for the court to determine. State v. Boudreaux, 137 La. 227, 68 South. 422; State v. Golden, 113 La. 791, 37 South. 757; State v. Craft, 118 La. 113, 42 South. 718; State v. Benoit, 144 La. 276, 80

South. 329."

been proven, is not final and is subject to review on appeal. See State v. Clark, 142 La. 283, 76 South. 714."

As there is in this record no evidence whatever on the subject of overt act or want of overt act, of hostile demonstration or want of hostile demonstration, or as to who was the aggressor, the statement of the trial judge must therefore be taken as conclusive, In State v. Simmons, 121 La. 561, 46 South. 651, this court said:

"Where the whole evidence is not brought up,

the finding of the trial judge that there was not
sufficient proof of an overt act on the part of
the deceased to authorize the admission of evi-
dence of prior threats is conclusive"-citing
State v. Williams, 111 La. 211, 35 South. 521;
State v. Forbes, 111 La. 474, 35 South. 710;
State v. Ford, 37 La. Ann. 443; State v. Bow-
ser, 42 La. Ann. 936, 8 South. 474; State v.
Taylor, 44 La. Ann. 783, 11 South. 132; State v.
Stewart, 45 La. Ann. 1164, 14 South. 143; State
Feazell, 116 La. 264, 40 South. 698.
v. Golden, 113 La. 791, 37 South. 757; State v.

Bill of Exception No. 9.

[3-5] This bill was reserved to the refusal of the trial judge to grant a new trial on the ground of alleged newly discovered evidence. In State v. Burke, 152 La. 255, 92 South. 886, this court said:

"Motions for new trials [on the ground of newly discovered evidence] are addressed largely to the discretion of the presiding judge, and his ruling in denying the motion will not be disturbed". unless manifestly erroneous.

The alleged newly discovered evidence was that of one Riley Ward who would swear that just a few minutes before the difficulty he heard the deceased and two of the state's witnesses planning to whip the defendant; that the deceased asked the witness for a knife to use against defendant, and, when witness refused, deceased then left the camp and "went towards the store"; that witness also left the camp and had not gone out of earshot when the fatal shot was fired; that (although witness resides in the parish of Beauregard, where the killing took place) he had not informed defendant of these facts until the day on which the new trial was applied for (being 8 months and 3 weeks after the killing).

We do not think the trial judge manifestIn State v. Benoit, 144 La. 276, 80 South. ly erred, or erred at all, in refusing to reopen 329, the court said:

"The uniform jurisprudence in this state is to the effect that evidence of previous threats or of the dangerous character of the deceased, on the trial of a prosecution for murder, is not admissible until an overt act or a hostile demonstration has been proven to the satisfac tion of the trial judge. See State v. Boudreaux, 137 La. 227, 68 South. 422, and authorities therein cited [also State v. Varnado, 131 La. 951, 60 South. 627]. But it is now also recognized that such conclusion of fact by the trial

the case for the purpose of hearing this testimony. The evidence (according to the trial judge) showed that the accused was the aggressor; that the deceased did not have a knife in his hands; that no attempt was made by the deceased to put into execution the alleged plan to whip the accused. And hence this testimony was inadmissible to show threats, and otherwise wholly irrele

vant.

[6] Moreover the proferred evidence is

(100 So.)

changed the result of the jury's finding," pass in the first instance upon matters aris and hence the trial judge would have been justified in refusing a new trial on that ground alone. State v. Lejeune, 52 La. Ann. 463, 26 South. 992. See, also, 16 Corp. Juris 1205-1208.

Bill of Exception No. 10.

[7, 8] This bill was reserved to the refusal of the trial judge to give a special charge that "a person attacked at his home or place of residence is not forced to retreat or retire therefrom."

ing during the progress of a trial, it follows that a bill of exception which does not show that the trial judge was asked for a ruling, and an exception taken to such ruling when made, presents nothing for the consideration of the appellate court.

*

"An exception is an objection formally taken to a decision of the court on a matter of law. * The office of an exception is to challenge the correctness of the rulings or decisions of the court promptly when made, to the end that such rulings or deThe trial judge says that the homicide did cisions may be corrected by the court itself, not take place at the home or place of resi- if deemed erroneous, and to lay the foundadence of the accused, but at a camp where tion for review, if necessary, by the approboth the deceased and the accused were em-priate, appellate tribunal; or, as it has been ployed and at some distance from a number otherwise stated, to point out wherein the of tents where a number of laborers slept, excepting party claims to have been prejuincluding the accused and the deceased; that the accused was not attacked, but was himself the aggressor; and finally that his general charge "states very fully when, and under what circumstances, one is obliged to retreat and when not."

The general charge on that head is taken

substantially and almost verbatim, from State v. Robertson, 50 La. Ann. 92, 23 South. 9, 69 Ann. St. Rep. 393, and the trial judge also added:

diced by the ruling of the trial court." (Italics ours.) 3 Corpus Juris, 891, 895. See, also, State ex rel. Gaines v. Judge Second District Court, 12 La. Ann. 113. Incidentally, however, the trial judge says

that

"The court, on its own motion, and without

being requested by counsel for defendant to do
so, when objection was made to the alleged
statement of the district attorney, stated to the
jury that
they [the jury] were the
judges of what had been proved and must de-
cide the case, and arrive at a verdict upon the
evidence before them, and not on the state-

"A man unlawfully assaulted in a place where he has a right to be, whilst doing what he had a right to do, and put in danger, real or apparent, of losing his life or receiving great bod-ments of counsel." ily harm, is not required to endeavor to escape from his assailant; but may stand his ground, and repel force by force, even to taking the life of his assailant, if necessary, or in good reason apparently necessary, for the preservation of his life or to protect himself from great bodily harm." (Italics ours.)

As the charge given is even broader than the charge requested we fail to see wherein this defendant has cause whatever for complaint.

Bill of Exception No. 11.

[9] In this bill defendant complains of an alleged ruling by the court upon an objection to some statement made by the district attorney in argument, as being outside the record, and annexes the note of evidence taken at the time.

The trial judge says:

"Counsel for defendant did not object, or except, to a ruling of the court. He did not even request the court to instruct the jury to ignore the alleged statements of the district attorney as not supported by the evidence, or otherwise."

Which statement is in accord with the note of evidence annexed.

As the functions of an appellate court are to review the rulings of the judge, and not to

To which ruling no exception whatever was taken, as shown by the note of evidence, presumably because defendant realized that an exception to this ruling would have been purely frivolous.

[10] In State v. Horton, 151 La. 683, 92 South. 298, this court said:

"Except in extreme cases, the presumption is that the prejudicial effect on the jury of improper remarks made by counsel for the state was removed by the instructions of the court to the jury to disregard the same."

Which ruling was taken verbatim from State v. Heidelberg, 120 La. 300, 45 South. 256; and had been followed in numerous cases, all cited in 151 La. 688, 92 South, 298.

Decree.

The judgment appealed from is therefore affirmed.

Rehearing refused by the WHOLE COURT.

O'NIELL, C. J., dissents from the ruling on the motion for new trial.

STATE v. FLANCHER. (3 Div. 482.) (Court of Appeals of Alabama. June 3, 1924.) Criminal law 1134(3)-Appeal dismissed where affidavit of clerk showed questions presented became moot.

Where it appears from the affidavit of the clerk of the trial court that the questions presented on an appeal from an order or judgment became moot, the appellate court will dismiss the appeal.

Appeal from Court of Common Pleas, Montgomery County; J. Winter Thorington, Judge.

Habeas corpus proceeding. From an order or judgment granting writ, the State appeals. Appeal dismissed.

Harwell G. Davis, Atty. Gen., and Robt. G. Arrington, Asst. Sol., of Montgomery, for the State.

5. Criminal law 381-Accused cannot be convicted on bad character alone.

However bad the character of the accused

is, although his bad character relates to a trait involved in the nature of the charge, he cannot be convicted because of bad character only.

6. Witnesses 337 (2)—Impeachment as to character of accused limited to purpose of affecting credibility unless he puts character in issue.

If accused does not put his character in issue, impeachment must be limited to the purpose of affecting his credibility as a wit

ness.

7. Homicide 338 (4)—Admission of evidence of dangerous character of accused held reversible error.

In a prosecution for murder, error in admitting evidence that accused was a dangerous person, and that a policeman had arrested her many times, was reversible error, which was not cured by an instruction not to consider it.

John A. Sankey, of Montgomery, for appel- 8. Criminal law 677-Not proper practice lee.

to admit improper evidence and then tell jury to disregard it.

It is not proper practice to admit evidence patently illegal, irrelevant, inadmissible, and prejudicial, and allow it to remain until all the testimony is in, and then simply tell the jury

not to consider it.

9. Criminal law 814(3), 829(1)-Refusal of abstract charge covered by oral charge not

error.

In a prosecution for murder, refusal of a facts in the case, and which was fairly and subcharge which was abstract as applied to the stantially covered by an oral charge, was not

error.

10. Homicide

300(3)-Refusal of instruction as to self-defense held error.

Refusal of an instruction that if accused did not bring on a quarrel, and deceased attempted to use a knife on the accused and act

ed in such a manner as to indicate to a reasonable woman that she intended great bodily harm, and there was no reasonable mode of escape without increasing the danger, and defendant honestly believed she was in danger of great bodily harm, then the accused was authorized to anticipate the deceased and cut, and if there was a reasonable doubt on this proposition to find the accused not guilty, was error.

BROWN v. STATE. (6 Div. 427.) (Court of Appeals of Alabama. June 10, 1924.) 1. Indictment and information 164-Accused required to answer only specific charge. Accused need only answer the specific charge, whether in complaint or indictment. 2. Homicide 163(1)—Admission of evidence as to accused's violent character held error. On trial for murder, it is prejudicial error to admit evidence of the general character of the accused as being dangerous, violent, turbu-. Criminal law 789 (17)-Refusal of inlent, and bloodthirsty, where accused raised no such question.

3. Criminal law 309-No presumption as to character in absence of proof.

struction, that if jury had a reasonable doubt as to guilt to acquit, although not believing accused's witnesses, held error.

Refusal of a charge that, if the jury had a reasonable doubt of the truth of the state's

In absence of proof, there is no presump-evidence, they could not convict, although they tion as to character being good or bad.

1

4. Criminal law 308-Presumption is that accused is innocent of crime charged.

The presumption is that the accused is innocent of the crime charged, and it attends him throughout the trial, or until the state has proved his guilt beyond a reasonable doubt and to a moral certainty.

might not believe defendant's witnesses, was

error.

12. Homicide 295(1)-Refusal of instruction that, if killing was result of passion aroused by blow, accused was not guilty of murder, held error.

Refusal of a charge that, if the killing was the consequence of passion suddenly aroused

(100 So.)

by a blow, the accused could not be convicted | yond a reasonable doubt, and to a moral cerof murder in either degree, was error.

After the testimony was closed, the court instructed the jury not to consider the testimony which had been allowed by the court [4-6] The presumption indulged in a crim- as to the reputation of defendant for bloodinal case is that the accused is innocent of thirstiness, or fighting character. This was the crime charged. This presumption is evidentiary in its nature and attends the accused throughout the trial or until the state, by legal evidence, has proven the guilt of the defendant to the satisfaction of the jury, be