
    188 La. 762
    STATE v. THORNHILL.
    No. 34585.
    Supreme Court of Louisiana.
    Nov. 29, 1937.
    Rehearing Denied Jan. 13, 1938.
    
      Ponder & Ponder, of Amite, for appellant.
    Gaston L. Porterie, Atty. Gen., James O’Connor, Atty. Gen., Bolivar E. Kemp, Jr., Dist. Atty., of Amite, and Joseph M. Blache, Jr., Asst. Dist. Atty., of Hammond, for the State.
   LAND, Justice.

Defendant is charged with the murder of Earl Wilkinson, in the parish of Tangi-pahoa, on the 1st day of September, 1936. He was found guilty as charged, without capital punishment, by the jury, and was sentenced to imprisonment in the state penitentiary for the term of his natural life.

On appeal, the defendant relies, for the reversal of his conviction and sentence, upon numerous bills of exceptions reserved in the court below.

Bill of Exception No. 1.

During the selection of the jury, a juror was asked on his voir dire by counsel for defendant if he was not the first cousin of an attorney assisting in the prosecution. After answering in the affirmative, the juror was challenged by the defense for cause on the ground of his relationship to the attorney.

The court ruled that the juror was competent.

Relationship, to the district attorney, or associate counsel for the State, is not one of the grounds enumerated in article 3S1 of the Code of Criminal Procedure as cause for which a juror may be challenged. Besides, the juror answered on his voir dire that the fact of his relationship to associate counsel would not influence him in arriving at a verdict in the case, and the State offered to excuse- the juror by consent, before the bill was reserved.

This bill does not show that, at the time of the challenge of this juror for cause, defendant’s peremptory challenges had been exhausted before the completion of the panel. Article 353 of the Code of Criminal Procedure.

The bill is therefore without merit.

Bill of Exception No. 2.

A juror was asked by the State if he had a fixed opinion, and replied in the affirmative. The juror was then submitted by the State, and counsel for defendant asked him the following question:

“Q. You stated that the opinion you had would probably yield to the evidence. Now, Mr. Stewart, could you take the testimony produced on this stand and try this case and disregard what you heard about it, if that is the law and the Court instructs you to do that?”
“A. There is a doubt in my mind.”

The trial judge then excused the juror for the reason that he had a fixed opinion.

This ruling, in our opinion, is correct, as the juror did not state on his voir dire that liis opinion would yield to the evidence in the case, or that it could be changed, but that it “would probably yield” to the evidence, and that there was “a doubt” in his mind. Code of Criminal Procedure, art. 351, subd. 1.

Bills of Exceptions No. 3 and No. 9.

Counsel for defendant propounded to a juror on his voir dire the following question:

“Q. Would you hesitate to take the life of your assailant, if you were assailed, and your life appeared to be in imminent danger?”

This question was objected to by the State as not a proper question,' as it called for the opinion of the juror on a statement of facts that might not exist.

This objection was sustained by the trial judge, “for the reason that counsel for defendant refused to state the proposition more clearly. This juror was subsequently asked the correct question and qualified, and no hill was reserved by either side”.

"In bill of exception No. 9, the following question was propounded by counsel for defendant to a juror on his voir dire:

“Q. The question of self-defense is not what it appears to you as a juror sitting in the jury box, but how it appeared to the defendant, and, if the danger appeared to the defendant to be imminent and to be about to inflict upon him great bodily harm or attempt on his life, he can act to the extent of. taking the life of his adversary. Will you take the law as given you by the Court, and if it appears to you under the circumstances that the defendant was possessed of a real imminent fear of bodily harm or an attempt on his life, and he acted in defense of his life, will you give him the benefit of any doubt that might get into your mind?”

The district attorney objected to the statement of the law of self-defense made by counsel to the jury, on the ground it is not what appears to the defendant, but to a reasonable man, under the circumstances. The court sustained the objection, stating, at the time, that it was a question of law, and that the court would give the law to the jury.

In his general charge, at pages 106 and 107 of the transcript, the trial judge gave to the jury a clear and correct charge as to the law of self-defense, and it is the duty of the jury to accept and apply the law as laid down for them by the judge.

It is well settled that, if there be at the time an actual physical attack or hostile demonstration of such a nature as to afford reasonable grotmd to believe that the design is to destroy life or commit a felony on the person assaulted, the killing of the assailant will be homicide in self-defense. State v. Chandler, 5 La.Ann. 489, 52 Am.Dec. 599; State v. Peterson, 41 La.Ann. 85, 6 So. 527.

If from the acts, declarations, and conduct of the deceased, at the time, the accused had reasonable ground to believe himself in immediate danger of loss of life or of great bodily harm, he has the right to defend himself without further delay, though it should afterwards appear that there was no danger at all. State v. Joseph, 45 La.Ann. 903, 12 So. 934; State v. Garic, 35 La.Ann. 970.

Though the law does not demand of the defendant the same coolness and judgment in estimating his danger that can be exercised by the jury in reviewing the circumstances of the encounter, yet whether such reasonable grounds existed is a fact for the determination of the jury. State v. Garic, 35 La.Ann. 970.

We find no error in the ruling complained of by defendant.

Bill of Exception No. 4.

. Article 354 of the Code of Criminal Procedure provides that: “In all trials for any crime punishable with death, or necessarily with imprisonment at hard labor, the defendant shall be entitled to challenge peremptorily twelve (12) jurors, and the prosecution twelve (12). In all other criminal cases the defendant shall have six (6) peremptory challenges and the State six (6).”

After the State had peremptorily challenged six talesmen, and, acting under article 354, sought to challenge the seventh juror, defendant objected on the ground that this article was unconstitutional, as it was substantive legislation. This objection was overruled, and properly so, since this court held, in State v. Elmore, 179 La. 1057, 155 So. 896, that the article in question was constitutional, as it related to matter which is purely procedural, citing Constitution of 1921, article 21, section 1-a, as amended, see Act No. 262 of 1926.

The bill is without merit.

Bill of Exception No. 5.

Counsel for defendant propounded the following question to a juror on his voir dire:

“Q. Mr. Smith, the law of self-defense is every man has a right to protect his person or body from an unwarranted attack which is designed to inflict bodily harm and an attempt at your life, if you were confronted with such an attack would you hesitate in acting to defend your property and to the extent of taking your adversary’s life?”

The State objected to the question as not a correct definition of the law of self-defense. The record fails to show that this objection was sustained, and the juror answered :

“I would kill a man if he was going to kill me, if I thought he was going to, or came at me with something I thought he might kill me. with,”

Counsel for the defense then propounded to the juror on his voir dire the following question:

“Mr. Smith, if you were confronted with an attack by a man much greater in size and one you knew would beat you, and that it appeared to you that he was about to inflict great bodily harm, would you hesitate in taking his life in defense of your person?”

This question was objected to by the State as not a fair question and the proper statement of the law, and also as calling for the opinion of the juror. The objection was sustained by the court, and counsel for defense reserved a bill.

In the face of the fact that the trial judge, after hearing all the witnesses in the case, found that the testimony failed to establish an overt act or hostile demonstration upon the part of deceased at the time of the killing, the law of self-defense as defined in the question propounded to the juror was based upon an assumed state of facts that did not exist, and therefore had no application to the facts of the case. Besides, proof of disparity in the size and strength between prosecutor and accused is not admissible, unless there has been a prima facie case of self-defense laid by defendant, or such evidence has been preceded by proof that the prosecutor was the attacking party. State v. Broussard, 39 La.Ann. 671, 2 So. 422; State v. Giroux, 26 La.Ann. 582.

The ruling was correct.

Bill of Exception No. 6.

. During the examination of the regular venire, Charles Black, Jr., who was on the regular list of jurors which was served upon the defendant, was called for examination, but failed to answer, because he was temporarily absent from the courtroom. The regular venire was subsequently exhausted. Talesmen were drawn and subpoenaed for service in the case, and, upon resuming the trial, Charles Black, Jr., had returned to the courtroom and was again called for examination.

Counsel for defendant objected to using any of the regular venire, because “The venire was exhausted yesterday and new talesmen were called.” The trial judge overruled the objection, stating that they were absent when they were called.

Charles Black, Jr., “qualified perfectly upon his examination,” as stated in the per curiam to this bill; and, after counsel for defendant urged his objection, he accepted the juror without any attempt to challenge him, or without any protest; and, at the time he was accepted, the defendant had several challenges left.

We find no error in the ruling of the trial judge.

Bill of Exception No. 7.

This bill is not mentioned in either the brief of the defendant, or in that of the State, and must be considered as waived.

Bills of Exception Nos. 8 and 10.

In bill No. 8, while the jury was yet incomplete, the State peremptorily challenged the juror, Hilburn, who had already been examined on his voir dire and accepted as a juror. Objection to the State’s challenge was made by counsel for defendant on the ground that the juror had already been accepted and sworn, and the objection was overruled.

The State relies upon article 358 of the Code of Criminal Procedure, which reads as follows:

“The jurors shall be tendered first to the prosecution, and, if accepted, then tendered to the defense. After a juror has been accepted by both sides, neither side has the right to challenge him peremptorily, but it shall be within the discretion of the court, and not subject to review to allow either side to peremptorily challenge jurors up to the time that the jury is impaneled

As the jury had not yet been impaneled at the time the peremptory challenge was allowed by the trial judge, his ruling was correct.

In bill No. 10, it appears from the recitals therein made that, after a jury of twelve had been selected and duly sworn, the State, over the objection of the defense, was permitted to challenge peremptorily a juror named Kennon.

The trial judge held that either side had a right to challenge a juror peremptorily up to the time of taking the testimony. The ruling of the judge a quo is stated too broadly, in our opinion, and needs qualification.

If it should appear in any case that, at the time the State peremptorily challenged a juror, the panel was complete, and the defendant had exhausted his peremptory challenges and was compelled, because of the State’s challenge, to accept an obnoxious juror, we would not hesitate to-set aside the conviction and sentence in such a case, as both prejudice and injury to the defendant would be clearly shown.

But, in the instant case, it is not stated by defendant, in either bill of exception No. 8 or in bill of exception No. 10, that defendant’s peremptory challenges had been exhausted, and that he was forced, by the peremptory challenges allowed the State, to accept an obnoxious juror.

Nor does defendant pretend, in either of these bills, that, by his ruling, the trial judge allowed the State more peremptory challenges than are allowed by law. Had he done so, it would have been reversible error, and a new trial would have to be granted to defendant. State v. Earle, 24 La.Ann. 38, 13 Am.Rep. 109; State v. Gay, 25 La.Ann. 472; State v. Everage, 33 La.Ann. 120. But the fact is that the district attorney exhausted his last peremptory challenge against the j'uror, Kennon, as shown by his statement: “We have one other challenge and want to challenge Mr. Kennon.” Tr. p. 45. The record fails to disclose that any additional peremptory challenge was allowed the State by the trial judge in this case.

Defendant, therefore, has shown no injury as a result of the ruling of the trial judge.

This court has repeatedly held that, in order to justify the appellate court in reversing a verdict, there must be shown not only error, but injury or prejudice as a consequence. State v. Marsalise, 172 La. 796, 135 So. 361; State v. Flattmann, 172 La. 620, 135 So. 3; State v. Colombo, 171 La. 475, 131 So. 464; State v. Ricks, 170 La. 507, 128 So. 293; State v. Jones, 169 La. 291, 125 So. 127; State v. Cullens, 168 La. 976, 123 So. 645.

This jurisprudence has been adopted by the framers of the Code of Criminal Procedure in article 557 of that Code, which reads as follows:

“No judgment shall be set aside, or a new trial granted by any appellate court of this State, in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”

Under the circumstances of this particular case, the ruling of the trial judge is sustained.

Bills of Exception Nos. 11 and • 12.

In these bills, defendant objected to testimony offered by the State to show that, after the shooting, no weapon was found upon the person of deceased, the objection being that what was done was out of the presence of. the defendant. This objection was overruled. A State witness testified that, when he and Dr. Farmer arrived at the scene of the homicide, Dr. Farmer suggested that witness raise the wounded man up. This witness had testified that he helped to lay deceased down when he was shot and removed some of his clothing.

On cross-examination by counsel for defendant, the witness testified as follows:

“Q. You know whether he was armed? Of your own knowledge from what you felt and saw, did he have a gun ?
“A. I didn’t see anything. Not even a pocket knife.
“Q. If he had had one on him could you have seen it?”

Counsel for defendant then objected to this line of testimony and the objection was overruled. Tr. p. 48.

The burden is not on defendant to prove his plea of self-defense, but on the State to prove that the homicide was not in self-defense, as a homicide committed-in self-defense is justifiable and not felonious, and the State must prove its feloniousness beyond a reasonable doubt. State v. Scarborough, 152 La. 669, 94 So. 204; State v. Ardoin, 128 La. 14, 54 So. 407, Ann.Cas.1912C, 45; State v. Varnado, 128 La. 883, 55 So. 562; State v. Herring, 131 La. 972, 60 So. 634.

There can be no doubt that the fact that deceased was unarmed, at the time of the homicide, tends to prove that the killing was felonious, and, as the State must prove that it was felonious beyond a reasonable doubt, evidence to show that deceased was not armed, when killed, is clearly relevant, material, and admissible.

Bills of Exceptions Nos. 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25.

These bills, from 13 to 25, inclusive, were reserved to the court’s ruling that, as no-overt act or hostile demonstration upon the part of the deceased, at the time, of the killing, had been first proved, evidence as-to any prior altercation or previous, threats made by the' deceased against the accused was inadmissible.

The trial judge states, as the reason for his ruling, that the testimony proved that, at the time of the actual killing, the deceased was standing about ten feet from the accused, making no advances, threats, or hostile demonstration towards the accused ; that the killing of deceased was entirely unnecessary, uncalled for, and appeared to the court as having been a coldblooded murder; that the defense relied upon a plea of self-defense, and the State proved beyond any manner of doubt that no such thing as self-defense existed in the case.

In determining whether sufficient foundation has been laid for the introduction in a murder case of evidence of the deceased’s dangerous character, or of his previous threats against the accused, the trial judge has the discretion of passing on the credibility of the witnesses and the sufficiency of the evidence, and his rulings will not be reversed unless manifestly erroneous. State v. Dreher, 166 La. 924, 118 So. 85; State v. Beck, 46 La.Ann. 1419, 16 So. 368; State v. Ford, 37 La.Ann. 443.

In State v. Jones, 175 La. 1066, at page 1069, 145 So. 9, it is said:

“From the Ford Case, 37 La.Ann. [443] 460, down to the present time, it has been uniformly held by this court that, in passing upon the question of prior threats of the deceased, the trial judge must of necessity be clothed with the authority to decide whether a proper foundation has been laid for the proffered evidence; that such authority necessarily includes the discretion to ignore and not consider testimony which his reason refuses to believe; and that mere evidence of such hostile demonstration, as distinguished from proof thereof, is insufficient. State v. Sandiford, 149 La. 933, 90 So. 261, and authorities there cited:

“It is also well settled that: ‘The term “overt act,” as used in connection with prosecutions for murder where the plea of self-defense is involved, means any act of the deceaséd which manifests to the mind of a reasonable person a present intention on his part to kill defendant or do him great bodily harm.’ State v. Brown, 172 La. 121, 127, 133 So. 383, 386; State v. Williams, 46 La.Ann. 709, 15 So. 82; State v. Stewart, 47 La.Ann. 410, 16 So. 945; State v. Fontenot, 50 La.Ann. 537, 23 So. 634, 69 Am.St.Rep. 455.”

In State v. Scarbrock, 176 La. 48, at page 50, 145 So. 264, 265, it is said: "The statutory law and fixed jurisprudence of this state are that, ‘in the absence of proof of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.’ Code Cr.Proc.(Act No. 2tof 1928), art. 482; State v. Brown, 172 La. 121, 133 So. 383, and authorities.” (Italics ours.)

“And the proof of such overt act or hostile demonstration must be to the satisfaction of the trial judge, subject, however, to review by this court. State v. Brown, supra.” See, also, State v. Washington, 184 La. 544, 166 So. 669.

Also evidence is not admissible as to previous difficulties or altercations, unless defendant lay a proper foundation therefor, by first showing a hostile demonstration ot-an overt act on the part of the deceased, at the time of the .killing. State v. Williams, 155 La. 9, 98 So. 738; State v. Joiner, 161 La. 518, 109 So. 51; State v. Smith, 171 La. 452, 131 So. 296.

The deceased was a young man nineteen years of age, and was killed by the defendant, who is an officer of the town of Kentwood, and a deputy sheriff of the parish of Tangipahoa and who was armed with a pistol at the time of the homicide.

The testimony clearly shows that, at the time of the shooting, which occurred at 8:30 p. m., in front of the Corner Café in Kentwood, deceased was unarmed, and did not have on his person even a pocketknife. As deceased and several companions approached the defendant, he .ordered deceased to go 'back across the street, and immediately fired two shots from his pistol at deceased, who was fatally wounded, and ran across the street and fell on the sidewalk.

Not a single witness in the case has sworn that deceased attempted to draw a weapon, at the time of the shooting, except the defendant, who testified that when he told the deceased to go back across the street he kept coming, “And he threw his hands in his pockets, when he did that I shot one time, and he swerved and he came out with his gun, and swung around this way facing the café, and I shot Mm in the side here, and he swung around and back directly across the street. Mr. Wilkerson and Champ was standing in the middle of the street, and Earl (deceased) as he went by he handed Albert Chapman the gun, and run on across and run in the Pool Room and Mr. Wilkerson following him over there. Mr. Wilkerson didn’t go in the Pool Room, he stood on the outside.” Tr. p. 183.

Albert Chapman, called in rebuttal, testified as follows:

“Q. Mr. Chapman, it has been testified that after Earl Wilkerson was shot he crossed the street and handed you a gun. What have you to say as to that?
“A; That is not true.
“Q. Where were you when he was shot?
“A. I was standing about three or four feet in front of him.
"Q. In which direction did he run?
“A. The opposite way ninety degree angle away from me.
"Q. You had been with him. Had— did he have a gun at that time ?
“A. I didn’t see a gun on him.
“Q. Did you see him run over there? Did you watch him ?
“A. Near about to the pool room.
“Q. Did he run past anybody?
“A. I never noticed anybody in the street.
“Q. In what condition was his hands, or what position were his hands, while he was running ?
“A. Just like that, across his chest.
“Q. Did you see anybody hand anything after he was shot.
“A. No, sir.” Tr. pp. 196, 197.

W. W. Wilkinson, father of deceased, testified, ■ in rebuttal, that he was not an eyewitness to the shooting, but was between Newman’s store and the I. C. Railroad when the gun was fired, and did not hear the shots; that he came on back up Main street, and, as he was crossing that street, he stopped to see what the excitement was about. Tr. pp. 188, 189.

Doc Lambert, a State witness, testified that when he got to the body of deceased, who was then alive, Dr. Farmer suggested that “we raise him up.” The witness testified that he removed some of the clothing, and that he did not see any gun, not even a pocketknife. Tr. p. 48.

The defendant is thoroughly impeached as to his testimony that deceased drew a pistol at the time of the killing. This testimony was not accepted as true, either by the trial judge or by the jury, nor can we accept same as credible, m reviewing the evidence in this case, offered to prove an overt act or hostile demonstration on the part of the deceased, at the time of the killing, as a foundation for the introduction of evidence as to previous threats and former altercations, offered by defendant.

In the absence of proof of an overt act or hostile demonstration at the time, all' such evidence was properly excluded by the' trial judge, as well as evidence to show that deceased, on several occasions and some time before the killing, carried a. pistol on his person.

Suffice it to say that, in the altercation-between deceased and defendant, about thirty minutes before the shooting, although language offensive to defendant was used by deceased, no assault was committed or blow was struck by either of them.

Bills of Exceptions Nos. 26, 27, and 30.

Article 480 of the Code of Criminal Procedure provides that: “Evidence of the good character of accused is always admissible in his behalf, and must be considered in connection with and as a part of the whole testimony and due weight be given it, but it can not destroy conclusive evidence of guilt; and stick evidence must be restricted to showing character 'as to such moral qualities as have pertinence to the crime with which he is charged.”

In bill No. 27, a defense witness was asked by counsel for defendant the following question:

“Q. Mr. Catha, a man’s reputation in his. community is what people generally say and think about him. Have you ever had occasion to hear anyone discuss Mr. Thorn-hill’s reputation?
“A. No, sir, I never did.
“Q. Have you ever heard anything said'' against him?”

Objection was made by the State that, if' witness had not heard his reputation discussed, he was not competent to discuss, his reputation, and the objection was sustained.

This is a murder case, and, under article 480 of the Code of Criminal' Procedure, counsel for defendant was restricted to evidence of the good character of defendant as to such moral qualities as have pertinence to the crime of murder, and should have asked the witness if he knew the general reputation of defendant as being a quiet, peaceable, and law-abiding citizen in the community in which he lived.

So, in a prosecution for murder, testimony as to the good reputation of accused for peace and quiet in his community is admissible, but not testimony as to his reputation for truth and veracity, or for honesty or trustworthiness. State v. Banks, 138 La. 1090, 71 So. 194; State v. Griggsby, 117 La. 1046, 42 So. 497; State v. Bessa, 115 La. 259, 38 So. 985.

As article 480 of the Code of Criminal Procedure is a statutory requirement, restricting proof of character to such moral qualities as have pertinence to the crime charged, a defendant is bound by such restriction, and, in a murder case, .must ask the witness if he knows the general reputation of the accused as being a quiet, peaceable, and law-abiding citizen in the community in which he lives.

.To hold otherwise would make the statute a dead letter, and permit proof of the general reputation of the defendant as good, without any pertinent restriction whatever, thereby enabling a defendant to evade the statute, and still get before the jury proof of his good character.

For these reasons, the ruling of the trial judge is sustained.

Bill of exception No. 26 is also without merit. Arthur Duson, a witness for defendant, who had testified to his reputation, was asked the question, if it isn't a fact that you told Mr. Thornhill (defendant) that you could not work with him unless he quit drinking? Counsel for defendant then made the following and only objection: “I object to it unless you give some specific time and place.” The objection was overruled, and the witness answered: “On one occasion a dance, he was drinking. I found out and I told him he would have to cut that out.” Tr. p. 84.

In bill No. 30, the defendant under cross-examination by the State was asked the question: “As a matter of fact, she is in the hospital because you gave her a beating so she couldn’t testify in this case?” Counsel for defendant objected to the question as an attempt to prejudice the minds of the jury. The objection was overruled, as defendant was on cross-examination. A bill was reserved. The witness answered: “No.” Page 85.

Where accused voluntarily offers evidence to prove his good character, and then opens the door for contradiction, the State may tender, in rebuttal, proof of his bad character, the more so when the inquiry is upon cross-examination of witnesses for the defense. State v. Farrer, 35 La.Ann. 315.

A witness testifying to the good character of accused may properly be examined as to particular facts, in order to test the soundness of his opinion and the data upon which it is founded. State v. West, 43 La.Ann. 1006, 10 So. 364; State v. Pain, 48 La.Ann. 311, 19 So. 138; State v. Le Blanc, 116 La. 822, 41 So. 105; State v. Green, 127 La. 830, 54 So. 45; State v. Oteri, 128 La. 939, 55 So. 582, Ann.Cas.1912C, 878.

“When a person accused, or .a husband or wife becomes a witness, such witness shall be subject to all the rules that apply to other witnesses, and may be cross-examined upon the whole case.” Code Cr.Proc. art. 462.

If a defendant becomes a witness in his own behalf, he thereby subjects his testimony to impeachment and puts his credibility at issue like any other witness. State v. Suire, 142 La. 101, 76 So. 254; State v. Quinn, 131 La. 490, 59 So. 913.

We find no error in the ruling of the court.

Besides, the law is that evidence of good character is unavailing against proof of guilt beyond a reasonable doubt. State v. Nicholls, 50 La.Ann. 699, 23 So. 980; State v. Pete, 153 La. 943, 96 So. 818; article 480 of Code of Criminal Procedure.

Bills of Exception Nos. 28, 29, 31, 32, and 33.

After the State had cross-examined the defendant upon threats which had been excluded from the evidence, counsel for defendant reoffered his testimony and that of other witnesses, which had also been excluded from the evidence, on the ground that there was no proof of an overt act or hostile demonstration at the time of the killing.

This evidence was offered:

First, as part of the res gestae;

Second, to show who was the aggressor;

Third, to show the absence of malice on the part of the defendant; and

Fourth, as corroborative of the testimony of threats and violence against the life of the defendant.

As stated by the trial judge in his per curiam, this testimony of previous threats and a previous altercation had been previously presented in support of bills of exception Nos. 13 to 25, both inclusive, and was excluded by the court for the reason that no overt act or hostile demonstration at the time of the actual killing had been established.

Under the jurisprudence and authorities, the ruling of the court was clearly correct.

The reoffer of this testimony was objected to, at the time, by the State:

First, because there had been no evidence to prove an, overt act or hostile demonstration on the part of the. deceased at the time of the killing;

Second, because anything happening twenty or thirty minutes before the killing would not be a part of the res gestee;

Third, because there is no testimony of any threats before the jury, there could not be any corroborative testimony of any threats; and,

Fourth, because the testimony of Albert Chapman, Champ Yarborough, and Grover Harrell, witnesses of the State, corroborated by the testimony of other witnesses, proved conclusively that the accused, Estus Thornhill, was the aggressor, and that the deceased, as he stood unarmed, was shot down in cold blood by the accused, without even a chance to run for his life.

These objections were sustained by the trial judge, and properly so, in our opinion.

Bills of Exceptions Nos. 34 and 35.

Bill of exception No. 34 was reserved to the refusal of the- trial judge to give to the jury special charge No. 3, requested by defendant.

This charge reads as follows:

“3.- — Gentlemen of the jury, it is your duty to consider the evidence that the deceased was a quarrelsome, desperate and revengeful man together with the other evidence, and if this evidence with the other evidence causes 'a reasonable doubt to arise in your mind, then it is your duty as jurors to acquit the accused.”

As this bill does not annex any evidence to show that deceased was a quarrelsome, desperate, and revengeful man, the special charge was not applicable to the facts of the case. Besides, in the absence of proof of an overt act or hostile demonstration, at the time of -the killing, evidence as to the dangerous character of the deceased is not admissible.

Article 384 of the Code of Criminal Procedure provides that:

“It belongs to the jury alone to determine the weight and credibility of the evidence, but the judge shall have the right to instruct the jury on the law but not upon the facts of the case,” as he was requested to do in the special charge in question.

The judge must not charge on the facts, draw any conclusion from them, or assume that any fact has been proved.

The bill is without merit.

In bill No. 35, defendant objected to the first part of the charge on the ground that the illustrations given were comments on the evidence in the case. The first part of the charge relates to the crime of murder, and covers a page and a half in the transcript. Pages 102 and 103.

Defendant does not specify, in his objections, the particular illustrations of which he complains. However, the first part of the charge pontains the following:

• “Malice is either expressed or implied. By express malice the law means an actual intention to kill, which intention is manifested by external circumstances capable of proof. For instance, where it is established that a person lay in wait for his victim; where the accused had made previous threats against the deceased; where there existed between the parties former grudges; when a party arms himself beforehand, etc., or any other fact, susceptible of proof, which shows a preconcerted scheme to carry out the unlawful purpose.

“Implied malice is where the killing is malicious, but where there are no external signs of premeditation beyond the mere fact of the killing, for instance, where there was no just ground for it, when the killing was without provocation, or upon so slight provocation as not to justify it, malice is then implied. It is also implied in any deliberate cruel act committed by any person against another.

“If a man, armed with a deadly weapon, such as a pistol, should suddenly, and with little or no apparent cause or provocation, shoot and kill another, the law would presume that such a killing was malicious, for no one would commit such a cruel act unless acting under the influence of malice. That is what the law means by implied malice.

“The killing under the influence of either malice would be murder.”

The evidence in this case is not referred to in his charge in the slightest manner by the trial judge, and the illustrations used in the charge are of the usual and most general character.

It is well settled that statements in a charge by way of illustration are not comments on the facts. State v. Obregon, 10 La.Ann. 799; State v. Nicholls, 50 La. Ann. 699, 23 So. 980; State v. Rice, 159 La. 820, 106 So. 317.

The special charge was properly refused.

The conviction and sentence appealed from are affirmed. •

PONDER, J., recused,

HIGGINS, J., absent.

O’NIELL, Chief Justice

(dissenting).

My opinion is that a person on trial for murder or manslaughter, who pleads that he did the killing in self-defense, should be allowed to introduce evidence of previous threats on the part of the deceased, or of the dangerous character of the deceased, whenever there has been .introduced any evidence at all from which the jury might decide that the deceased made a . hostile demonstration against the defendant at the moment of the killing. In other words, when the issue presented is whether thé deceased or the defendant provoked the fatal difficulty, the issue is one for the jury to decide, from all of the ■ evidence, including the evidence of previous threats on the part of the deceased, or of his dangerous character, if there be any such evidence. The reason for that is that the question to be decided, as to who provoked the difficulty, is a question of fact, on which depends the guilt or innocence of the defendant. In truth, that is the only question on which depends the question of guilt or innocence of the defendant, and is therefore the only question that the jury ultimately has to decide, in a prosecution in which the defendant pleads self-defense. We must bear in mind that, according to the Constitution of Louisiana, and according to the Constitution of each and every state in the Union, and according to the Constitution of the United States itself, the jury alone has authority to decide questions of fact on which depends the question of guilt or innocence of the defendant in a criminal prosecution before a jury. The jurisdiction or authority of the judge in such a case is confined to the deciding of questions of law, and collateral questions of fact — such as a question on which depends the competency of a juror or the admissibility of certain evidence^-and only such questions, therefore, as have no direct relation to the question of guilt or innocence of the party accused. Section 9 of article 19 of the Constitution of 1921 (which was article 179 of the Constitution of 1898 and of the Constitution of 1913) declares that the juries in criminal cases are the judges of the law and the facts, after receiving their instruction on the law from the presiding judge. And section 10 of article 7 of the Constitution of 1921 (which was article 85 of the Constitution of 1898 and of the Constitution of 1913) limits the jurisdiction of ' the Supreme Court, in criminal cases, to ! “questions of law alone.”

In the case of State v. Pairs, 145 La. 443, 82 So. 407, 409, which was decided in 1919, and has never been overruled, it was said that, in a prosecution for murder or manslaughter, where the defendant pleads self-defense, it would be a violation of article 179 of the Constitution of 1913 (which is retained as section 9 of article 19 in the Constitution of 1921), for the presiding judge, instead of the jury, to decide who was the aggressor in the fatal difficulty; and that, in such a case, it would be a violation of article 85 of the Constitution of 1913 (which is retained in section 10 of article 7 of the Constitution of 1921) for the Supreme Court to decide who was the aggressor in the fatal difficulty. In the Pairs Case, the question of admissibility of the evidence of the threats which were said to have been made by the deceased on occasions previous to the fatal difficulty was the only question presented. A rehearing was granted in the case, and, after it was reargued and was reconsidered with the utmost deliberation, the judgment originally rendered, setting aside the verdict and granting a new trial, was reinstated “and made the final judgment of the court.” In the course of the opinion the law was stated thus:

“For the district judge to withhold from the jurors, and decide for them, a question of fact on which depends the guilt or innocence of.the defendant in a criminal case, is a violation of article 179 [now sec. 9 of art. 19] of the Constitution. And for the Supreme Court to decide such a question is a violation of article 85 [now sec. 10 of art. 7] of the Constitution. Inasmuch as proof of previous threats on the part of the deceased is not admissible for any other purpose than to show who was the aggressor in the fatal difficulty, when that question is in doubt, it is a begging of the question to say that proof of such threats is not admissible until the defendant has proven affirmatively that the deceased was the aggressor, and that he (defendant) acted in self-defense. The effect of such a ruling would be to deprive the defendant of the benefit of proof of previous threats on the part of the deceased, in any and every case where self-defense is pleaded in justification of a homicide. The defendant in such case, after proving affirmatively that he was justified under the law of self-defense, would have no need of the proof of previous threats on the part of the deceased.”

In support of the court’s ruling in the Pairs Case, the court quoted from Rice on Evidence, Criminal, vol. 3, p. 575, § 362, in the chapter entitled “Evidence of Self-defense,” and cited, to the same effect, Wharton’s Criminal Evidence, 10th Ed., vol. 2, § 912.

In the eleventh edition of Wharton’s Criminal Evidence, vol. 1, p. 371, § 286, the doctrine is stated thus:

“Uncommunicated threats are relevant to show the feeling and disposition of the deceased toward the accused; to show whether the killing was malicious or in self-defense; to show who was the aggressor, or as tending to show who was the aggressor.”

The first case cited by Wharton, in the footnote (8) to the expression, “to show who was the aggressor,” and also in the footnote (9) to the expression “or as tending to show who was the aggressor,” is the case of Wiggins v. Utah, 93 U.S. 465, 23 L.Ed. 941.

In Underhill’s Criminal Evidence, 4th Ed., p. 1121, § 564, Wiggins v. Utah is the first case cited in the footnote (46) to support the declaration: “Uncommunicat-ed threats are then relevant to show he [the deceased] provoked the affray, or to explain the intention with which he participated in it, or to illustrate the character of the attack.”

In Wigmore on Evidence, 2d Ed., vol. 1, pp. 345, 346, § 110, the rule with regard to uncommunicated threats, and the general principle concerning their admissibility, is stated thus:

“Where on a charge of homicide the excuse is self-defense, and the controversy is whether the deceased was the aggressor, the deceased’s threats against the accused are relevant. The deceased’s design to do violence upon the defendant is of some value to show that on the occasion in question he did carry out, or attempt to carry out, his design. Moreover, it is the fact of his design, irrespective of its communication to the defendant, that is evidential.”

In the next section, section 111, it is said: “This evidence is now conceded to be admissible, by virtually all courts.” And the first case cited in the footnote (1) is Wiggins v. Utah, 93 U.S. 465, 23 L.Ed. 941.

In Wiggins v. Utah, the defendant was convicted of murder in the territory of Utah, and the conviction and the death sentence were affirmed by the Supreme Court of the territory. The case was brought to the Supreme Court of the United States on a writ of error, under an act of Congress (18 Stat. 254, § 3) allowing a writ of error in capital cases. The only error complained of, as stated in the opinion rendered in the case, was the ruling, sustaining the objection to the introduction of evidence of threats said to have been made by the deceased, a short time before the killing, which were not communicated to the defendant. There was only one witness .to the fatal difficulty, and his testimony was unfavorable to the defendant, although the witness could not say who fired the first shot. In reversing the judgment of the Supreme Court of Utah and setting aside the verdict, and- granting a new trial, the Supreme Court of the United States said:

“In a trial for homicide, where the question, whether the prisoner or the deceased commenced the encounter which resulted in death, is in any manner of doubt, it is competent to prove threats of violence against the prisoner made by the deceased, though not brought to the knowledge of the prisoner.” (The italics are by me.)

One member of the court, Mr. Justice Clifford, dissented from the ruling in Wiggins v. Utah, on the ground that there was absolutely “no evidence in the case tending to show that the deceased was the aggressor, or that the act of homicide was perpetrated in self-defence.” But the de-cisión was cited with approval in Allison v. United States, 160 U.S. 203, 215, 16 S.Ct. 252, 257, 40 L.Ed. 395, 400, thus:

“In Wiggins v. Utah, 93 U.S. 465 [23 L.Ed. 941], it was held that, on a trial for a homicide committed in an encounter, where the question as to which of the parties commenced the attack is -in doubt, it is competent to prove threats of violence against defendant made by deceased, though not brought to defendant’s knowledge, for the evidence, though not relevant to show the quo animo of the defendant, would be relevant, under such circumstances, to show that at the time of the meeting deceased was seeking defendant’s life. Whart.Cr.Ev. § 757; Stokes v. People, 53 N.Y. [164] 174, [13 Am.Rep. 492]; Campbell v. People, 16 Ill. 17, [61 Am.Dec. 49]; People v. Scoggins, 37 Cal. 676; Roberts v. State, 68 Ala. 156. It is from the dissenting opinion in Wiggins’ Case that the trial judge indulged in quotation in connection with the undisputed proposition that a person’s life is not to be taken simply because he has made threats.”

In Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980, the principle is stated thus:

“An issue as to manslaughter raised by evidence cannot be taken from the jury because of other evidence of a different kind.”

Allison v. United States and Stevenson v. United States are both cited with approval in Wallace v. United States, 162 U.S. 466, 16 S.Ct. 859, 40 L.Ed. 1039, where the rule is stated thus:

“Prior threats by a person killed, against his slayer, are relevant evidence in a homicide case, where from any view the jury can properly take of the circumstances the belief of the accused that he was in imminent danger of death or great bodily harm might excuse his act or reduce the crime from murder to manslaughter.”

To the same effect was the decision in Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146. It appears, therefore, that the prevailing opinion in the present case is not only contrary to the opinions of all of the text-writers on the law of evidence, and contrary to all of the decisions cited by them in the footnotes to their opinions, but is contrary also to the rule established by the decisions of the Supreme Court of the United States.

The case of State v. Pairs, 145 La. 443, 82 So. 407, was quoted with approval in State v. Sandiford, 149 La. 933, 90 So, 261, 263, where the defendant alone testified that the deceased made a hostile demonstration at the moment of the killing,' and where four children of the deceased contradicted the defendant’s testimony, and the defendant offered evidence of previous threats on the part of the deceased, the purpose of the offering being to corroborate the defendant’s statement that the deceased committed the overt act; and this court held that the evidence of the alleged previous threats was admissible, and said:

“The only question of fact pertaining to the guilt or innocence of the accused, which the jury had to decide, was whether defendant’s statement, that Sheppard [the deceased] advanced upon him in such a threatening way as to give him good reason to believe that his life was in imminent danger, was a true or a false statement. The question was simply one of veracity between the defendant and the state’s witnesses. To the question thus presented to the jury, proof of previous threats on the part of Sheppard [the deceased] to take defendant’s life was surely relevant. In fact, the proof would not have been relevant to any other question because previous threats on the part of the deceased would not, alone, have justified the kill-lUg?. ^ ^ ^
“The burden of proof of the facts relating to a plea of self-defense rests, not upon the defendant, but upon the state. As self-defense is not a special plea, the burden of proof rests upon the state to show, beyond a reasonable doubt, that.the killing was done feloniously, and not in self-defense, in order to convict the party accused of a felonious homicide. [Here the court quoted from several decisions]. * * *
“It would be entirely inconsistent with the doctrine quoted, to hold that a defendant, pleading self-defense in a prosecution for murder, must prove, even by a preponderance of evidence, before being allowed to introduce evidence of previous threats on the part of the deceased, that the latter made such a hostile demonstration as to justify defendant’s belief that his life was in imminent danger when he fired the fatal shot. It would require the defendant to first eliminate the very issue, and the only issue, to which the evidence of previous threats would be relevant, before allowing him to introduce the evidence of previous threats. Such a doctrine would deny the defendant the right to introduce evidence of previous threats, except in a case in which he would not need the evidence.”

There was no dissent from the decision in the Sandiford Case. One member of the court did not take part in the decision, and three members said that they concurred in the decree. A rehearing was granted and the original opinion and decree were reversed. The right was reserved to the defendant to apply for a rehearing. I adhered to my original opinion. The court, in refusing a second rehearing, handed down a per curiam, saying:

“The judgment of the court on the original hearing in the case of State v. Pairs, 145 La. 443, 82 So. 407, was not intended to be a departure from the established jurisprudence on the point of a foundation having to be laid, by proof of an overt act, for opening the door to the admission of evidence of previous threats. It appearing to be so, however, to the Attorney General, a rehearing was granted on his application; and on the rehearing the court sought to make plain that what was decided in the case was, not that an overt act did not have to be shown, but that, under all the circumstances of that case, the conduct of the deceased constituted an overt act.”

The court, in its per curiam, then cited “Mr. Wigmore, in his monumental work on Evidence,” and quoted his approval of putting some limitation upon the admissibility of evidence of previous threats on the part of the deceased, or of the dangerous character of the deceased, in a prosecution in which the defendant invokes the law of self-defense. The pertinent part of the quotation, taken from the second edition, vol. 1, of Wigmore on Evidence, is this:

“A common limitation is the broad one that other evidence shall be offered which serves to bring self-defense fairly into issue, — some appreciable evidence of the deceased’s prior aggression, 'Or ground to believe in impending aggression, — for it is not always clear which is judicially meant. By some courts it is said .(more strictly) that the issue of selfrdefense (i. e., presumably, the impending, of an attack) must be in doubt. Another and more specific form of limitation is the doctrine of ‘overt act’, peculiarly developed in Louisiana and Florida. * * * This is a'wise and fair limitation. * * *M

This last sentence, between the asterisks, is, as completed' by Mr. Wigmore: “This is a wise and fair limitation, provided it be not further refined by details which degenerate into quibbles, — a proviso not always observed.”

The per curiam handed down in the refusal of a second rehearing in the Sandi-ford Case ends thus:

“The learned author [meaning Mr. Wig-more in his monumental work on Evidence] recognizes here the development of the doctrine of 'overt act’ in this state.”

Mr. Wigmore does recognize the development of the doctrine of the “overt act,” in Louisiana and in Florida; but he does not sanction the doctrine as developed in Louisiana. In the footnotes under sections 246 and 247, on this subject, it appears from all of the Florida cases that are cited that it is not hecessary for the defendant to first prove that the deceased committed an “overt act,” but it is necessary only for him to first introduce some evidence of the overt act, so as to put the question at issue, — before he is allowed to introduce evidence of previous threats on the part of the deceased, or of the dangerous character of the deceased. Mr. Wigmore, I regret to say, criticizes severely the jurisprudence in Louisiana,— on the subject of the “overt act.” For example, under section 246, (a) Overt act, p. 508, in his analysis of a long list of decisions by this court, Mr. Wigmore says: “From this maze of twisting precedents, which none but a Louisiana practitioner should be condemned to unravel, these conclusions could be ventured,” etc. And, under section 247, p. 515, in his analysis of the list of Louisiana cases there cited, Mr. Wig-more says: “Thus the see-saw of rulings continued to inject an interesting element of chance into criminal practice in this State.” Immediately following that comment, Mr. Wigmore cites State v. Sandiford, 149 La. 933, 90 So. 261, 273. It was in that case that the court, in refusing a second rehearing, referred to “Mr. Wig-more, in his monumental work on Evidence,” as recognizing “the development of the doctrine of ‘overt act’ in this state.”

The fundamental error, in the development of this doctrine in Louisiana, is in giving to the word “proof” a very technical meaning, instead of the meaning in which the word is generally used and understood. The error had its origin in State v. Ford, 37 La.Ann. 443, 461, when the court, overlooking the fact that it was an invasion of the province of the jury, and a violation of the Constitution, for the court to decide the question of fact on which depended the guilt or innocence of the defendants, said:

“The question' for solution is therefore simple. It is this: Does the rule governing the admission of such testimony [to prove the dangerous character of the accused or previous threats of violence against the defendants] content itself with testimony of an overt act by the deceased, or does it require proof of such an act? There is a wide difference between evidence of an act and proof of the same.”

The word proof, in its common acceptation, is a synonym for the word evidence. It is so said in Webster’s New International Dictionary — where, among the definitions of the word proof, is this definition, and synonym, viz.: “also that which proves or tends to prove; that which induces or tends to induce certainty of judgment; evidence.”

Hence, to say that there is no proof of a given fact is the same as to say that there is no evidence of the fact. The context in which the word proof is used in article 482 of the Code of Criminal Procedure gives an illustration of an instance where the word proof is synonymous with the word evidence, viz.:

“In the absence of proof of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

If the word proof, as employed in this article of the Code of Criminal Procedure, had to be construed so as to compel a defendant in a criminal prosecution, invoking the law of self-defense, to prove his innocence, under the law of self-defense, before he is allowed to introduce evidence of previous threats on the part of the person slain or injured, the article of the Code of Criminal Procedure would be violative of the provisions in the Constitution, reserving to the jury the exclusive right to decide questions of fact relating to the question of guilt or innocence of the defendant in a criminal prosecution; and such an interpretation of the law would produce an anomalous consequence. A cardinal rule of statutory construction is that, if a law is susceptible of either of two constructions, one of which will render the law unconstitutional, or produce an anomalous result, and the other of which constructions will leave the law constitutional and produce a reasonable result, the latter construction must prevail.

The construction which is given to article 482 of the Code of Criminal Procedure in the prevailing opinion in this case produces an anomalous result, because it is bound to do injustice, either to the defendant or to the State, in every case, according to which way the judge rules, after hearing evidence on the question of the overt act. If the judge rules in favor of the State, without having heard the evidence of the previous threats, he deprives the defendant of the benefit of the evidence which is important in the solution of the question- — and which is relevant only to the question — which the judge has already decided. If he rules in favor of the defendant, that puts an end to the case, and the jury ought to be discharged, because the judge then has decided, virtually, that the defendant is entitled to be acquitted, under the law of self-defense; and the State has no right of appeal.

Adverting now to the decision in State v. Ford, which is the source and origin of all of the confusion in the jurisprudence on this subject, we must not overlook the fact that that decision was virtually overruled in State v. Kellogg, 104 La. 580, at page 599, 29 So. 285, 294, in these vigorous terms :

“It is true that in the case of State v. Ford, 37 La.Ann. 443, the jurisdiction, which, as we have seen, is vested in the trial judge with respect to collateral facts, was held to extend to facts bearing upon the question of guilt or innocence, and that precedent has been followed in later cases. A careful reconsideration of the subject has, however, led to the conclusion that our fundamental law requires that, where it becomes necessary to determine the question of the existence vel non of any fact bearing upon the guilt or innocence of the accused in a criminal case, such question should be submitted to the jury, provided there is any evidence tending to establish such fact.”

The decision in State v. Kellogg was in line with State v. Cancienne, 50 La.Ann. 847, 24 So. 134, and was followed by a ruling to the same effect in State v. Stockett, 115 La. 743, 39 So. 1000, and by another ruling to the same effect in State v. Rideau, 116 La. 245, 40 So. 691.

It is true that State v. Ford, decided in 1885, was cited with approval in State v. Boudreaux, 137 La. 227, 68 So. 422, in 1915; but the latter decision, in reality, is authority only for the proposition that this court cannot intelligently review the finding of the trial judge, on the question of the overt act, when only a part of the testimony is in' the record. The decision in the Boudreaux Case was so construed in two comments that appeared in the Columbia Law Review, vol. 16, No. 1, pp. 57 and 72, in January, 1916. In one of these comments, on the subject of the want of a “uniform jurisprudence” on the subject, the editor said: “For a critical comparison of the holding's of the Louisiana courts, see 1 Wigmore, Evidence, § 246, note 13, p. 312.”

The only question that the presiding judge has to decide when the question of admissibility of evidence of previous threats on the part of the person slain or injured arises is whether any evidence has been introduced from which the jury might determine that the person slain or injured was the aggressor at the time when he was killed or injured. The same rule applies to the admissibility of evidence of the dangerous character of the person slain or injured, when the defendant on trial invokes the law of self-defense. And, on appeal, this court has authority only to decide the same question — whether there was any evidence of the so-called overt act, or hostile demonstration. For that purpose, and on that subject, a record of the testimony should be brought to this court, under the provisions of Act No. 113 of 1896, p. 162.

I concede that, in the recent decisions quoted in the prevailing opinion in this case, the court has held, virtually if not in exact terms, that a defendant who, in a prosecution for murder or manslaughter, invokes the law of self-defense, must prove that he was justified under the law of self-defense, before he is allowed to introduce evidence of previous threats on the part of the deceased, or evidence of the dangerous character of the deceased. I refer to the quotations from State v. Sandiford, on rehearing 149 La. 933, 90 So. 261, State v. Brown, 172 La. 121, 133 So. 383, and State v. Jones, 175 La. 1066, 145 So. 9. The other decisions cited, requiring the defendant to prove the overt act, to the satisfaction of the judge, do not go quite as far as the decisions I have mentioned go. All of these decisions, however, are violative of “our fundamental law,” as the court said, of State v. Ford, in State v. Kellogg, 104 La. 580, 29 So. 285, 294.

These recent decisions, which are viola-tive of “our fundamental law,” ought to be overruled, as the decision in the Ford Case was overruled, in State v. Kellogg. There is no such doctrine as stare decisis to stand in the way of our correcting errors in the law of evidence in the trial of criminal cases.

For these reasons I respectfully dissent from the prevailing opinion in this case, without expressing an opinion as to any other ruling in the case.  