
    No. 11,538.
    State of Louisiana vs. Cora West et al.
    Re-examination or Juror on His Voie Dire, Not Previously Declared Competent. — A juror Having been examined on bis voir dire, was accepted by tbe State and by tbe defendant.
    The juror, not yet sworn, informed the court o£ his disqualification, in regard to which he had not been questioned. .
    He was re-examined only as to the disqualification disclosed. It was proved and the juror was ordered to stand aside.
    It does not appear that the trial court exceeded the bounds of the discretion with which it is invested, in having ordered this juror to stand aside; moreover, it is not shown that the defendant exhausted her peremptory challenges. There was therefore no prejudicial error committed subject to review.
    Fixed Opinion of a Juror. — A juror having testified on his voir dire that he had reached a conclusion as to the guilt or innocence of the accused, unalterable by any testimony, was excluded from the jury.
    He had been examined by the District Attorney.
    Counsel for defendant asked to question the juror, which was refused.
    
      It is not shown that the juror had not been sufficiently examined to establish his-prejudgment,nor that in consequence defendant’s peremptory challenges were exhausted.
    To establish the bawdy character of the house and its bad reputation, the evidence o£ the persons frequenting it was admissible.
    Pro Of? Ol? Reputation, with Other Pacts and Circumstances. — 1The bawdy character of the house may be shown by its general reputation (and the bad reputation of the persons frequenting the house), with other evidence leading to-that conclusion.
    On application eor Rehearing.
    The Charge oethe Court to the Jury. — The trial judge, in his statement in the bill, says: “ that he had instructed the jury on the subjects in regard to which special instruction was ashed by the defendant.” There is no record of the instruction given.
    The charge is presumed to have been correct, in the absence of any exception or of a request to instruct the jury in writing.
    Moreover, common reputation as to the character of the defendant, and of the house which she kept, was admissible. It was left to the jury to determine as-to the weight of this and other evidence.
    APPEAL from the Eighteenth District Court, Parish of Lafourche. Caillouel, J.
    
    
      M. J. Cunningham, Attorney General, and B. F. Winchester, District Attorney, for the State.
    
      Clay Knobloch & Son Attorneys for Defendant and Appellant:
    In a criminal case a juryman examined on his voir dire by the State, and tendered to and accepted by the accused as a competent juror, should not be further questioned by the State with a view to challenge him for cause. 5 An. 820.
    Witness should not be allowed to testify to opinion, save in rare and exceptional cases; this case must be classed among those where the rule applies that witnesses can only testify to facts, and that the jury alone can form opinion. 87 An. 268; 38 An. 450.
    The State not objecting to a question propounded on cross-examination to a State witness to show bias, prejudice and feeling, the witness alone objecting to answer, on no legal, but on sole ground that the question was not a fair one, and the court not being called upon to rule in the matter, but volunteering to rule that the question was not relevant and should not be, as it was not answered by the witness, there is error in the ruling. Great latitude is permitted on cross-examination in criminal cases to probe the feelings, prejudices and motives of a State witness. Questions to that end are permissible, and may be repeated in various forms when it becomes necessary to test the fairness and impartiality of a witness. 38 An. 153; 37 An. 78.
    In a criminal case where the State introduces three witnesses to testify to general reputation, and two to testify as to particular facts from personal knowledge, it is error for the trial judge to refuse to charge that evidence from personal knowledge, although of negative nature, outweighs evidence as to general reputation.
    Evidence of a negative nature may, under particular circumstances, not only be equal but superior to positive evidence. 36 An. 84.
    Where the defendant is charged with keeping a disorderly brothel, evidence of general reputation is not admissible, it being necessary to sustain the indictment that particular facts which constitute the offence should be proved. Wharton on American Criminal Law, Sec. 668.
   The opinion of the court was delivered by

Breaux, J.

The defendant was convicted of keeping a disorderly brothel and was sentenced to one month in parish prison, and to pay a fine of three hundred and one dollars, and in default of paying the fine to two months additional in the parish jail. From this sentence she appeals.

She relies for reversal of the verdict and sentence on a number of bills of exceptions, reserved to the ruling of the trial judge.

EXAMINATION ON VOIR DIRE OF JUROR TENDERED.

The court’s recitals in bill of exceptions No. 1, to the exclusion of juror, are that the juror had been accepted by the State without having been interrogated as to any opinion about the case.

He had been accepted by the defendant, but had not yet been sworn. The unsworn juror at that time informed the court that he had not been asked if he had formed an opinion.

The District Attorney applied for permission to reopen the examination, to which counsel for the defendant objected on the ground that it was too late, and urged that the juror should be sworn.

The bill of exceptions does not show that the juror accepted by the State and the defendant had been pronounced competent by the court, and that he had been directed to take the oath.

It is the general rule to urge all objections to a juror before he has been sworn. State vs. Diskin, 34 An. 920.

The re-examination should not be opened as a general thing after the juror has been pronounced competent and has been called to the book to be sworn. But if, prior to pronouncing him competent, the court has good reason not to be satisfied with his competency questions may be propounded by the court without thereby committing an error. The court’s attention having been called to an oversight, it directed the District Attorney to examine the juror upon the point overlooked and none' other.

This Court must presume that the trial judge properly exercised the discretion with which he is entrusted. Belt vs. The People, 97 Illinois, 466; Hendrick’s Case, 5th Leigh, 709; Wharton’s Crim. Law, 7 Ed., Sec. 3130.

NO PRE JUDICAL ERROR PROVED.

The second, third and fourth bills of exceptions were taken to the court’s rulings and refusal to permit counsel for the accused to propound questions to a juror on his voir dire.

The following is, in substance, ohe statement of the court, copied in the bills of exceptions:

That the juror answered on his voir dire that he had formed a fixed and unalterable opinion which could not be changed by any evidence.

He was challenged by the District Attorney for cause. The court sustained the challenge and ordered the juror to stand aside.

The request of the counsel for defendant was refused, the court states, for the reason that the juror on account of the bias shown by him was incompetent.

Counsel for the State and counsel for the accused should have reasonable opportunity to ask the juror such questions as may test his competency.

We would feel compelled to remand the case if the error appeared, prejudicial to the accused.

The records do not disclose that the accused had exhausted her peremptory challenges.

She, therefore, was not, because of the ruling excluding the juror, compelled to accept an objectionable juror.

She had in her control the remedy the peremptory challenge secures. Wharton Crim. L., 7 Ed., Vol. 3, Par. 3152.

Moreover such error, that is an error in a ruling rejecting a juror, is not, as a general thing, as prejudicial as an error committed in a ruling selecting a juror.

The principle is laid down always subject to the limitation that prejudicial error in an appealable case is not always subject to review. “ Where a cause has been tried by an impartial jury, although the judge, on the application of one of the parties and against the consent of the other, may have rejected a juror for a cause of questionable sufficiency, such rejection does not afford a ground of complaint if justice has been done in the premises. ’ ’ Thompson and Merriam, Sec. 271.

AN IRRESPONSIVE ANSWER.

The sixth bill of exception was taken to the court’s ruling permitting the prosecution to ask the witness the question: “ Prom the general surroundings and things seen and heard, what kind of house did he think it was?” The question did not elicit the answer sought.

The witness replied negatively. “He did not know whether it (the house) was a brothel or not’ ’ is the answer stated in the bill of exceptions. The purpose of the prosecuting officer in propounding the question was defeated by witness’ answer, and there is in consequence no issue for decision. The objection is unsupported by the facts, and therefore unfounded.

THE COURT’S DISCRETION PROPERLY EXERCISED.

A bill of exception was taken to the ruling of the court permitting the prosecuting officer to ask the sheriff, who was testifying as a witness, to give the names of persons who had spoken to him on _ the subject at issue.

It was legitimate and proper to seek information appertaining to the issues of the case and obtain the names of those who had spoken to the witness about the house kept, it was charged, by the defendant as a brothel.

IRRELEVANT QUESTION:

The eighth bill of exceptions shows the following :

That the witness is a lawyer. He testifies that the accused kept a bawdy house. He was asked to name the persons who had spoken to Mm on the subject, to which he replied that he had spoken about it to the judge and other officers of the court.

The defendant, availing herself of the statement, sought to obtain from the witness an expression of opinion regarding the effect of his own utterances, in contributing to the bad reputation charged upon her.

The witness declined to answer, on the ground of the unfairness of the question propounded.

The trial judge states:

“ Before objection to answer by the witness the District Attorney suggested that the question was objectionable, but as the witness was a lawyer he left it to him- to answer or not; whereupon the witness appealed to the court, and announced he would not answer the question unless compelled to do so by the court. The court, considering the matter sought to be elicited by the question to be utterly irrelevant, ruled that the witness was not bound to answer.”

In declining to answer, the witness did not add to or detract from the effect of his testimony. Any answer responsive to the question would have been irrelevant.

We must,” says Mr. Wharton, in his book on Criminal Evidence (p. 472), again notice the important distinction between questions in chief, whose object is tojbring out facts important to the maintenance of public justice, and questions in cross-examination, whose object is merely to harass a witness.”

NO APPARENT INJUSTICE.

Counsel for the defendant also complains of the refusal of the trial judge to grant him time to write the question propounded to this witness, so that there would be no dispute about the nature of the question.

The defendant’s rights were not prejudiced by the refusal.

Had the judge a quo agreed with defendant’s counsel in the statement that the District Attorney remained silent until after the witness refused to answer and the court had ruled in the witness’ favor, the result would have been the same.

A witness may of his own motion, without the assistance of the District Attorney, provoke a ruling of the court, protecting Mm from answering a question not material to the issues involved and relating to the effect of his own utterances in establishing defendant’s reputation.

BAD REPUTATION WITH OTHER EVIDENCE ADMISSIBLE TO ESTABLISH OTHER CHARGES.

Bills of exceptions were taken to the court’s ruling in admitting testimony to establish the bad reputation of the house of the defendant.

It is not shown by the bill of exceptions that the testimony of bad reputation was the only evidence received, and that there was no ■other testimony admitted to establish the ill fame.

Reputation accompanied with other evidence, showing that the house has actually been resorted to for the purpose of prostitution, is admissible as tending to establish the offence. State vs. Mack, 41 An. 1081; Drake vs. State, 17 N. W. Reporter, 117; Wood’s Law of Nuisance, 40.

THE REQUESTED INSTRUCTION PROPERLY REFUSED.

The defendant requested the trial judge to charge that “ direct evidence is stronger and overturns evidence as to general reputation.”

This is preceded by the statement of defendant’s counsel, in the bill of exceptions, that the State examined five witnesses, three of whom testified as to the general reputation of the house, and ten of whom testified as to particular facts from personal knowledge, that the house was a beer saloon.

This statement did not receive the approval of the court a qua, whose recitals in the bill of exceptions are that the evidence of the two witnesses on the point was more in the light of negative than affirmative testimony, and that he had fully charged the jury on the subject matter.

Credibility is determined by the jury, under such instructions as may be given by the court.

The defendant was without right to instructions to the ljury that would have accentuated the difference between the testimony of two ■of the witnesses who swore to certain facts, thereby discriminating from the testimony of three witnesses who testified as to the ill fame of the house in the community.

Moreover, it was not the duty of the court to instruct the jury that evidence of general reputation was subordinate to and of no importance as compared with direct evidence.

The bill of exceptions does not establish that these witnesses were the only witnesses who testified, and that upon their testimony exclusively the case was decided.

Principles should be laid down to guide the jury in weighing testimony, but it is not incumbent upon the court to instruct the jury that testimony of certain witnesses to prove certain facts is of more weight than testimony offered to prove reputation.

The court properly declined to give the instructions tendered.

This completes the review of the proceedings, and we find no ground to set aside the verdict and sentence.

Judgment affirmed.

On Application for a Rehearing.

Breaux, J.

The defendant in her application for a rehearing, through her counsel, argues anew the different grounds previously argued.

They have been considered and passed upon in our decision.

We will nevertheless review again two of the points presented.

They are first, that the trial court erred in not instructing the jury as requested that “direct evidence is stronger and overturns evidence as to general reputation.”

The trial judge in the bill of exceptions states that he based his refusal on the fact that “ he had already previously fully instructed the .jury on the subject matter.” Considering the points presented with reference to the issues as presented by the trial judge, we do not discover that he erred in refusing to give the charge requested. The weight to, be given to the statement of facts in the bill of exceptions is well defined in a number of decisions of this Court. The trial judge certifies to the facts, and unless it is shown that they are incorrectly stated, they are considered as correctly narrated. State vs. Broussard, 39 An. 671.

Second — That particular facts constituting the offence must be proved, and “ not general reputation,” is the other instruction requested.

Mr. Woods, in his treatise on the Law of Nuisances, announces the principle of evidence on this point, as follows:

“ Mere reputation is not sufficinet, for that is often wholly unreliable and unworthy of credence; but when accompanied with evidence showing the dissolute character of the inmates and of the persons visiting them, it is admissible as tending to establish the offence ” Par. 50, Sec. 29.

In Dillon it is stated “ that the common reputation as to the character of the defendants, and of the houses which they keep, is. admissible.” Dill. Mun. Corp., Vol. 1, p. 412, note 1, 2d Ed.

In considering this point we did not feel authorized, in the absence of proof, to assume that there was evidence only of bad reputation, offered and admitted.

That portion of the charge of the trial judge narrated in the bill of' exceptions, and the finding of the jury, negative the grounds upon-which the defendant based her application for a new trial on this, point.

Defining of evidence (urged by the defendant) to make out the case (of this we have no proof) offers no ground for reversal on. appeal.

The ease comes to us as made out on testimony of reputation, accompanied, we must presume, with other evidence establishing guilt.

The rehearing is refused.  