
    No. 11,880.
    State of Louisiana vs. Jean Monceaux.
    If the record fails to show that the defendant was present during the trial, the record may he amended so as to supply the omission.
    Evidence which is irrelevant and admitted without objection, can not be corroborated by the testimony of another witness when objected to.
    
      APPEAL from the Eleventh Judicial District Court for the Parish . of Acadia.. Perrault, J. ■
    
    
      M. J. Cunningham, Attorney General, and E. B. Dubmsson, District Atcorney, for Plaintiff, Appellee.
    
      E. P. Veazie and Charles W. Duray for Defendant, Appellant.
    Submitted on briefs, on original hearing, November 9, 1895.
    Submitted on briefs, on rehearing, January 11, 1896.
    Opinion handed down November 18, 1895.
    Opinion on rehearing handed down January 20, 1896.
   The opinion of the courc was delivered by-

MoEnhbv, J.

The defendant was indicted for shooting with intent to murder while lying in wait, convicted of shooting with intent to murder and sentenced to hard labor for twenty years. He appealed from the judgment and sentence.

There is only one bill of exception in the record.

It recites that while the defendant was on the stand in his own behalf, he stated that parties in the interest of the prosecution were “forging evidence against him,” and gave as an instance, that one Benoit, a friend of the prosecution, had come to the jail where he was confined, and declared to him that he would make the state witness Homere Monceaux swear to whatever he chose against him. This testimony went to the jury without objection; but the District Attorney put at issue the truth of this statement and rigidly cross-examined the defendant. In the course of the cross-examination it was shown that Benjamin Rodrigues was present and heard this declaration made by Benoit.' The defendant’s counsel then announced that for the sole purpose of supporting the testimony of the accused upon this point, which had been impeached by the cross-examination, he would place upon the stand Benjamin Rodrigues. The jury retired, and Rodrigues was called and swore to the fact stated by the defendant. The counsel for defendant then proposed to put the testimony of Rodrigues before the jury. This was refused by the court for the reason.that “ if an irrelevant or inadmissible fact happens to go to the jury without objection by the testimony of one witness, said fact should not be allowed to be proved by another witness, when objected to, simply because the first witness happened to be impeached by cross-examination.”

It does not appear from the bill that the credit of the witness for truth and veracity was impugned; but that he was cross-examined as to a fact stated by him, which was irrelevant and collateral to the issue. The only object of calling Rodrigues as a witness was to show that the accused had stated truthfully this fact. It was immaterial testimony and could have no bearing on the case, and there was no reason why, in this respect, the defendant should be corroborated.

Had the bill shown that Homere Monceaux had been sworn as- a witness, and that Benoit had taken an active part in the prosecution, or in any way influenced the testimony of Monceaux, the testimony of the defendant when considered in relation to these facts might have been considered material and important and the testimony of the rejected witness would be permitted to go to the jury. The absence of any such statement in the bill and the ruling of the District Judge are conclusive to our minds that no such state of facts existed, and that the declaration of Benoit was an idle threat, which was not attempted to be carried into execution.

Judgment affirmed.

ON REHEARING.

The opinion of the court was delivered by

Breaux, J.

A rehearing was granted in this case. To the Attorney General, when the rehearing was granted, was allowed the right to apply for the necessary process to correct the record in accordance with the facts.

It was assigned as error that the record did not show that the prisoner was present when the jury was sworn and empaneled. Availing himself of the authority granted by the court to correct the record, the Attorney General obtained a supplemental transcript from the clerk of the District Court and had it filed as part of the transcript on appeal.

It is now made manifest that the defendant was personally present at all the periods of the prosecution requiring him to be personally present — i. e., he was present in open court with his counsel at the arraignment, the empaneling and swearing of the jury and throughout the trial.

There is no possible ground upon which to sustain the writ of error. No other defence was urged on appeal.

It is ordered and adjudged that the sentence and judgment are affirmed.  