
    No. 9763.
    The State of Louisiana vs. Dennis Corcoran.
    An appeal in a criminal case will not be dismissed on tbe ground that tbe transcript of appeal bas not been filed in tbe Supreme Court on tbe return day, if it appeared that it was filed within three judicial days thereafter.
    In a prosecution for manslaughter, it was urged that a few minutes before tbe killing the deceased and a number of companions were assembled at a certain place; tbat they left thero together and went to tbe place where the accused was found and was pointed out • by one of tbe parties to tbe deceased, who was told by tbe one thus pointing him out to go aud talk to him; and tbe deceased, without speaking, immediately approached the accused and seized him by tbe throat and beat him in tbe face; tbat tbe accused pulled loose from bis assailant and retreated to the middle of tbe street, where be was followed by tbe deceased, again seized violently and beaten by him. In which last struggle tbe mortal blow was given by the accused. At this stage of tbe testimony tbe witness on tbe stand, and who was one of tbe party tbat bad accompanied the deceased, was asked in substance, when this attack was made on tbe accused, what did you do, and what did each one of tbe party present do (naming each one), at tbe same time and place, which question was objected to, tbe objection sustained, and tbe witness not permitted to answer. Held, tbat tbe ruling was error. It is not true tbat tbe res gestee can consist only of what was said and done at tbe time by tbe participants in a combat. They may embrace what was said and done by any and all present, which have any bearing on tbe aflair or are in any manner connected therewith.
    
      APPEAL from the Criminal District Court for the Parish of Orleans. Balcer, J.
    
      M. J. Oimningham, Attorney General, and JAonel Adams, District Attorney, for the State, Appellee:
    ON MOTION TO DISMISS.
    
      A transcript of appeal in criminal cases must he filed within ten clays after granting the order of appeal. The Code of Practice does not regulate criminal proceedings. Article 589 evidently refers to civil matters. 31 Ann. 1171; 31 Ann. 805; 31 Ann. 483; 6 Ann. 653; 13 Ann. 491; 14 Ann. 469; 36 Ann. 310; 37 Ann. 62; 32 Ann. 1268; Sec. 4, Act 30 of 1878.
    ON MERITS.
    1. A declaration hy the deceased before the homicide, but having no casual connection with any immediate act produced hy the fatal conflict which resulted in the killing, is nota part of them gestee, and therefore inadmissible in evidence. Wharton Or. Ev. sec. 262.
    2. Before hostile threats by deceased against the accused are admissible in evidence, it must be shown the accused was present when they were made or they were communicated to him. 30 Ann. 1177.
    3. The ruling of the court a gua, refusing to grant a new trial, based upon questions of fact, cannot be revised hy this Court.
    
      Jas. O. Walker for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

There is a motion to dismiss the appeal on the ground that the transcript was not filed within ten days from the date of the order granting the appeal.

The order was granted on the 17th of May, and the transcript was filed on the 26th, same month.

This court lias held that an appeal in a criminal case will not be dismissed on the ground that the transcript has not been filed on the return day, if it appears that it was filed within three judicial days thereafter. State vs. Hampton, 33 Ann. 1252; State vs. Butler, 35 Ann. 392.

The motion to dismiss is therefore refused.

On the Merits.

The defendant, Dennis Corcoran, indicted for manslaughter, was tried, convicted and sentenced to seven years’ hard labor, and has appealed.

The case comes up on several hills of exceptions taken to the rulings of the trial judge on questions of evidence.

It is only necessary that we consider one of these bills.

The facts relating to it, and tlie circumstances under which it was taken are briefly these:

It had been proved that fifteen or twenty minutes before the killing took place, the deceased, Dan Ilaughery, Robert Simpson, Henry Hogan and several others, were at the Poydras Market; that they left together and proceeded to the corner of Liberty and South Poydras street, where the accused was found leaning against the posts of a shed. That when thus discovered, Robert Simpson said to Haughery, filie deceased: Dan, there is Corcoran; go talk to him.” That thereupon the deceased, without saying anything, advanced upon the accused, seized him by the throat, and beat him in the face with his fist. That the accused after trying to ward off the blows, succeeded in getting loose from his assailant, retreated to the middle of the street; that the deceased pursued, and overtook him, again seized him by the throat, and again beat him in the face. It was during this second attack hy the deceased that the mortal blow was given by the accused. It further appears, from the record, that the counsel for the accused had sought to establish that Ilaughery and his companions had left Poydras Market, where they were assembled, as above-mentioned, for the purpose of hunting Corcoran, and beating him ; and this he attempted to prove by a witness on the stand, and asked the witness (quoting): If shortly before the difficulty, say ten or fifteen or twenty minutes before the alleged homicide, did you not hear the deceased, Dan Haughery, ask Robert Simpson and Henry Hogan and others, to go with him to find Corcoran, to beat him ?”

On objection, the judge would not permit the witness to answer filie question.

Prom all this it appears that the theory of the defense was that there had been a plot formed by Haughery and his friends to find Corcoran and beat him, and that, in accordance with this plot, they had hunted him up, and Haughery had attacked him. Then, after proving this first attack by Haughery on Corcoran, the retreat of the latter and the pursuit and second attack by Haughery, the counsel for the accused, doubtless for the purpose of further supporting the theory of the defense, i. e., the plot for a combined attack on Corcoran by Haughery and his friends, asked Hogan, one of this party, and then on the stand as a witness, the following question (quoting):

While Haughery was beating accused in the face in the manner 3rou have described, what did you do, and what did Robert Simpson do, and what did Thomas O’Boyle do, at the same time and the same place ?”

This question was objected to on the ground (quoting) :

“ That it was not competent to prove in behalf of the accused anything that was said or done by any person or persons at the same time or place, except repeat what may have been said or done by the deceased or the accused, or by either of them.”

This objection was sustained, and the witness not permitted to answer the question.

In this the judge erred, under the circumstances stated and the facts developed, the question seems to us entirely legitimate and pertinent. Nor is it true that only the acts and declarations of the actual participants in a combat or melee can be proved as a part or parts of the res gestae. The res gestae may also embrace the contemporaneous acts and declarations of others present. 1 Greenleaf, secs. 108-111; State vs. Horton, 33 Ann. 290; State vs. Vines, 34 Ann. 1083.

We do not know what this witness might have testified to in answer to the question appearing above had he been permitted to answer it; but we can well conceive, from tbe facts already proved, that he might have disclosed facts highly favorable to tbe accused.

His testimony might have conclusively established that the accused was the victim of a plot or conspiracy on the part of Haughery and his friends, as charged by the counsel for the accused; that the entire party might have joined in the attack, or that Haughery was aided, abetted, or encouraged by the others, or other like facts tending to excuse the act of the defendant inflicting the mortal blow.

These are only suppositions, but whatever the answer of the witness to than question may have been, the accused was entitled to it, and the objection to the question was utterly untenable, and the ruling to the prejudice of the accused.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury be quaslied, and that the sentence of the lower court be annulled and reversed, and the case be remanded to the lower court to he proceeded with according to law.  