
    (42 South. 513.)
    No. 16,122.
    STATE v. BARRETT et al.
    (June 22, 1906.
    On Rehearing, Nov. 26, 1906.)
    1. Witnesses — Examination — Impeachment — He arsax .
    • The question whether the witness had not, at the office of the examining counsel, stated thus and so, was not objectionable, either as tending to elicit hearsay or as an impeachment of the witness by the party offering him; nor, if the witness was unwilling, as leading.
    2. Same — Cross-Examination.
    Por the purpose of impeaching his credibility, the defendant, testifying in his own behalf, may be asked on cross-examination whether he has not been prosecuted for other offenses.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1132, 1140, 1146.]
    3. Criminal Law — Declarations oe Accomplice — Evidence.
    The three accused killed the deceased by shooting at him through the walls of a house. Their defense was that they were on his bond in a criminal case and were trying to arrest him, and he was resisting. Por discrediting this defense the prosecution offered to prove that on the night of the killing one of the defendants had sent for whisky; and the defendants objected to the evidence, on the ground that “it was irrelevant, not connected with the transaction, near a mile from the scene of the trouble, and out of the presence of the other defendants.” Held that, under the peculiar circumstances of the case, the evidence might have been relevant, and that the appellate court, not being possessed of all the facts, cannot undertake to say that the evidence was not relevant. Held, secondly, that the declarations of one of the participants in a crime, when forming part of the res gestee, are admissible against his associates.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2933, 2934.]
    4. Same — Impeachment op Verdict.
    A juror cannot be permitted to impeach his own verdict; and still less may the verdict be impeached by the proof of statements said to have been made by the juror after his discharge.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 15. Criminal Law, §§ 2392, 2393.]
    On Rehearing.
    5. Same — Rehearing.
    The Supreme Court will not, on rehearing, enlarge the objections urged in the trial court to the introduction of evidence.
    6. Witnesses — Impeachment.
    The court should not, for the purpose of “discrediting” a defendant, then a witness on the stand, permit him to be questioned as to whether he had ever been “arrested” for, or “indicted” for, crimes. The question should, at furthest, be asked as to his “conviction.” TEd. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1140, 1146.]
    Breaux, C. X, dissenting.
    (Syllabus by the Court.)
    Appeal from Fourth Judicial District Court, Parish of Lincoln; Robert Brooks Dawkins, Judge.
    W. R. Barrett and others were convicted of manslaughter, and appeal.
    Affirmed.
    Price & Roberts, for appellants. Walter Guión, Atty. Gen., and Fred F. Preaus, Dist. Atty. (Lewis Guión, Clayton & Hawthorn, and R. W. Oglesby, of counsel), for the State.
   PRO VO STY, J.

The three defendants were tried on a charge of murder, and found guilty of manslaughter, and sentenced to four years at hard labor.

Bill of Exception No. 1.

A witness for the state proving to be an unwilling witness, not telling all he knew, the district attorney was permitted, over the objection of defendant, to put to him the following question:

“State whether or not you told me on March 3, 1906, in my office, that when you went into the house to look for Lee Sandford’s body, that you struck one match, looked upon the beds, and told defendants that he was not in there. To which they replied; ‘Oh! yes; he is. Look again.’ ”

To which question defendants objected, “for the reason that it is hearsay, leading, and the state cannot be permitted to impeach her own witness.”

This bill is without merit. The question was as to something the witness himself had said, and therefore was not hearsay; and leading questions are legitimate when the witness is unwilling. So far as its impeaching the witness is concerned, we fail to see wherein it had that effect.

In argument the learned counsel for defendants say that the object of the question was to lead the jury to believe that the witness had made the statement, and thereby to get the statement before the jury in this indirect and improper manner, and that this was the real ground of the objection. If so, this “real ground” should have been expressed, and an opportunity afforded the district attorney to explain, and the judge to rule. This court, as a matter of course, can con-aider only the objections that are stated in the bill.

Bills Nos. 2 and 3.

For the purpose of impeaching their credibility, the defendants, who appeared as witnesses in their own behalf, were asked, on cross-examination, whether they had ever been prosecuted before and for what offenses. This was objected to, on the ground that it was an attempt to impeach the character of the defendants, although it had not been put at issue.

This objection is without merit. It is well settled in our jurisprudence that, when a defendant offers himself as a witness, he may be asked, on cross-examination, whether he has not been prosecuted before for other offenses. State v. Murphy, 45 La. Ann. 958, 13 South. 229; State v. Southern, 48 La. Ann. 628, 19 South. 668; State v. Walsh, 44 La. Ann. 1122, 11 South. 811; State v. Taylor, 45 La. Ann. 605, 12 South. 927; State v. Alexis, 45 La. Ann. 973, 13 South. 394; State v. Favre, 51 La. Ann. 434, 25 South. 93; State v. Robinson, 52 La. Ann. 541, 27 South. 129.

The cases cited by defendants’ learned counsel are not in point. State v. Jackson, 44 La. Ann. 160, 10 South. 600, has no application whatever. What was there held was that, when witnesses are called to impeach the character of a witness, their testimony must be confined to the general character of the witness, and cannot be extended to particular acts.

State v. Underwood, 44 La. Ann. 852, 11 South. 277, and State v. Kennon, 45 La. Ann. 1194, 14 South. 187, have a closer bearing, but still are not exactly in point. They do not purport to maintain a different doctrine from that of the Murphy, Southern, and other cases, cited supra. Their doctrine is that the defendant cannot be cross-examined as to matters not testified to by him in chief. They do not say that a defendant who, by offering himself as a witness, represents himself as a credible and reliable witness, may not be cross-examined for the purpose of testing the representation thus made.

Bill No. 4.

The accused killed the deceased by shooting at him through the walls of a house. Their defense was that they were on his bond in a criminal case and were trying to arrest him, as they had a right to do, and that he was resisting. The prosecution, for the purpose of discrediting this defense, offered to prove that on the night of the killing one of the defendants had sent for whisky. Objection was made, on the ground “that it was irrelevant, not connected with the transaction, near a mile from the scene of the trouble, and out of the presence of the other defendants.”

Under the circumstances, we do not think the evidence was necessarily irrelevant. It might have tended to discredit the defense set up by defendants. We have not before us a sufficiently complete statement of the facts to enable us to judge of that. The fact that all the defendants were not present when the witness was asked to go for the whisky is immaterial, in view of the fact that the killing was the joint act of the defendants, and that, in consequence, they must be held as solidary in their conduct on the occasion in question, and the act of one as the act of all. It is elementary that the acts and declarations of one of the participants in a crime are admissible against his associates, when forming part of the res gestae. 12 Oyc. 437.

Bill No. 5.

This bill involves the same principle as Bill No. 1.

Bill No. 6.

The defendants moved for a new trial on the ground that after the trial one of the jurors had stated that at the time of his being taken as a juror he had a fixed opinion as to the guilt of the defendants.

If the juror had embodied the same statement in a formal affidavit, or had offered to make the statement under oath in open court, such affidavit, or statement in open court, would have been inadmissible in evidence. 12 Cyc. 749, citing State v. Corcoran, 50 La. Ann. 453, 23 South. 511; State v. Richmond, 42 La. Ann. 299, 7 South. 459; State v. Bird, 38 La. Ann. 497. A fortiori, then, is such statement not admissible in evidence when sought to be proved by the affidavit of bystanders who pretend to have heard it? ,

If jurors could vitiate their verdict by simply going about and making statements about their mental condition while sitting as jurors, or, worse still, if verdicts could be vitiated by simply offering testimony as to what one or more jurors had said after the verdict had been rendered, there would be little stability in verdicts.

Judgment affirmed.

On Rehearing — Statement of Case.

NICHOLLS, J.

On the application for a rehearing herein such serious doubts arose in the mind of the court as to the correctness of the views announced in the original opinion under the heading “Bills Nos. 2 and 3,” that the rehearing asked for was granted. We have examined the complaint made by the defendants that the state should have been permitted to propound and have answered, on cross-examination of the defendant Barrett, a witness on the stand for the defense, the following question:

“Mr. Barrett, how often have you been prosecuted before the courts, and for what offenses?”

And propound and have answered on cross-examination of J im Green, one of the defendants, a witness on the stand for the defense, the following question:

“Mr. Green, how often have you been prosecuted before the courts, and for what offenses?”

Defendant’s counsel objected to these questions on the ground that the matter of the defendant’s character has not been inquired about on the examination in chief, and no questions of that nature had been asked by defendant’s counsel, and the state had no right on cross-examination to go into matters not inquired about on the direct examination.

The bill taken recites, as to the question propounded to Barrett, that he answered by stating that “he had been prosecuted for murder once and a number of times for assault and battery,” and, as to the question asked of Green, that he had answered that “he had been prosecuted once previous, and was charged with whipping a negro.”

The defendants urged in both bills that this action of the state and ruling of the court was prejudicial and injurious to defendants. In both cases the court declared that it had directed the witnesses to answer only after the state had declared in presence of the jury that the testimony was sought solely for the purposes of affecting the credibility of the witness, and citing in support of his ruling State v. Walsh, 44 La. Ann. 1122, 11 South. 811; State v. Taylor, 45 La. Ann. 605, 12 South. 927; State v. Murphy, 45 La. Ann. 958, 13 South. 229; State v. Alexis, 45 La. Ann. 973, 13 South. 394; State v. Southern, 48 La. Ann. 628, 19 South. 668; State v. Favre, 51 La. Ann. 434, 25 South. 93; State v. Robinson, 52 La. Ann. 541, 27 South. 129.

In defendants’ brief on rehearing counsel say:

“We have not found a decision which has permitted the defendant, while on the stand in his own behalf, to be asked whether or not he had ever been charged with crime, or prosecuted for crime, and this has been held to be especially objectionable. In Bartholemew v. People, 104 Ill. 601, 44 Am. Rep. 97, it is held that it is the conviction and not the charge that may be shown, and the reason that no inference of guilt can be drawn from an arrest or a charge —much less an inference of guilt of an offense importing unveracity. It is merely an accusation, and innocence is presumed. People v. Brown, 72 N. Y. 571, 28 Am. Rep. 183; Brown v. People, 8 Hun (N. Y.) 562, holding it error to allow the question: ‘How many times have you been arrested?’
“In State v. Huff, 11 Nev. 17, in a murder trial, it was held to be an error to be allowed to be asked: ‘How many times have you been arrested for beating women and children?’ See, also, People v. Hamblin, 68 Cal. 101, 8 Pac. 887; Ryan v. People, 79 N. Y. 593, 594. In the case of Smith v. State, 79 Ala. 21, it was held to be reversible error. Ryan v. People, 79 N. Y. 593; Van Bokkelen v. Berdell, 130 N. Y. 141. 29 N. E. 254; State v. Taylor, 45 La. Ann. 608, 12 South. 927; State v. Jackson, 44 La. Ann. 160, 10 South. 600; State v. Donelon, 45 La. Ann. 755-758, 12 South. 922; Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45. In Parker v. Com., 51 S. W. 573, 21 Ky. Law Rep. 408, it was held that it was improper, on cross-examination of defendants charged with murder, to ask: ‘Have you ever been indicted for anything? Tell the jury what you have been indicted for?’ ”

Opinion.

In State v. Murphy, 45 La. Ann. 959, 13 South. 229, the defendant was, over objection, required to answer the question: “Have you been arrested for stealing?” The objection urged was that the question tended to degrade his character; that he had not put his •character at issue; that the records, if any, were the primary evidence of the facts sought to be proved.

In its opinion the court said:

“As a defendant, his character could not be impeached; that issue not having been opened by him. As a witness, his credibility was subject to attack.”

In State v. Southern, 48 La. Ann. 630, 19 South. 668, the question asked of the defendants and permitted to be answered over objection was:

“Are you charged with another offense at this time, and are there any other bills pending against you?”

The objection which was urged does not appear in the report of the ease.

In both cases the judgment of the district court was affirmed, on the ground that the questions were permissible “for the purpose of affecting credibility.” No stress seems to have been urged that the question should not have been asked as to “prosecutions,” “indictments,” or “arrests,” but should have been limited to questions touching “convictions,” which is the point submitted to us on this rehearing. In both of these cases referred to the defendants were on trial for larceny. In State v. Nash, 45 La. Ann. 974, 13 South. 265, and State v. Robinson, 52 La. Ann. 549, 27 South. 124, the questions asked were as to convictions.

It will be noticed that in the present case the special objectionable feature of the question asked, now urged, was not presented or pressed. Had the trial court been called on to consider it, non constat that it would have allowed the questions to be asked in the form they were. We are of the opinion that, had the questions been objected to from the standpoint now urged, the court should have maintained the objection. Wigmore on Evidence, §§ 980-982; State v. Bates, 46 La. Ann. 853, 15 South. 204. We do not feel warranted in enlarging on rehearing the objections submitted to the trial court on the trial.

We therefore find no ground for reversal, and our original judgment must, and does, remain undisturbed.

BREAUX, O. J.

I concur in the decree only, and reserve the right to file my reasons for concurring in the decree and my reasons for dissenting from the views expressed in the opinion of the majority of the court.

See dissenting opinion of BREAUX, O. J., 42 South. 515.  