260 La. 72

#### STATE of Louisiana v. Levy Alvin MORROW.

No. 51469.

Supreme Court of Louisiana.

Nov. 23, 1971.

*79Joseph F. Bishop, Jr., for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

PER CURIAM.

The single Bill of Exceptions perfected on behalf of defendant concerns the admissibility of hearsay testimony of a witness.

It is undisputed that the testimony sought to be elicited from a defense witness on direct examination was hearsay. The State objected to the line of questions propounded by defense counsel. Counsel was allowed to question the witness to the point of asking her what one Kenneth Augustine had told her occurred on the evening of the robbery with which defendant Morrow was charged. At that point, the trial judge informed the defense counsel that he had already ruled that such answer would be inadmissible hearsay. When defense counsel attempted to state the basis of his contention that the testimony was admissible, he was stopped by the court and ordered to sit down. Consequently, the reasons for the defense counsel’s objections to the ruling of the court do not appear in the testimony made a part of the bill.

From defendant’s brief we learn that counsel contends that the information sought constituted an exception to the rule which prevents the admission of hearsay evidence — that it was, in fact, an admission by Augustine against his penal interests. Defense counsel argues that he wished to show that Kenneth Augustine had told the witness Shirley Lewis that he, Augustine, was the perpetrator of the crime with which Morrow was charged. In some jurisdictions, if a third person makes an extrajudicial confession to the crime with which a defendant is charged, and that third person is not available for trial, then his confession may be admitted in evidence. The defendant here contends that Kenneth Augustine was “not available for trial” because he relied upon the Fifth Amendment when questioned about the offense.

In the per curiam to the Bill of Exceptions, the trial judge notes that Kenneth Augustine was called by the defendant as a witness, and had testified before the matters surrounding Bill of Exceptions No. 1 had transpired.

The record before us discloses that Augustine, when he was on the witness stand, although he was allowed by the trial judge to remain silent in respect to certain questions, denied that he had robbed anyone on *80the night in question. This was not, according to defense counsel, the testimony he had hoped to elicit, and for that reason he made the effort to obtain testimony from the witness Shirley Lewis to the effect that Augustine had committed the crime for which the defendant was accused.

Although the witness Augustine was called to the stand by the defendant, defense was allowed to cross-examine the witness concerning the existence of scars on his wrist, after the defense counsel requested that the court declare Augustine a hostile witness. When asked whether the scar was caused by a bullet wound, the witness, on being advised by the court, refused to answer the question. Later, when questioned by the State on cross-examination, Augustine denied participation in the robbery.

This answer by the witness Augustine, that he did not participate in the robbery, removes the situation from the operation of the rule allowing proof of extrajudicial admissions against penal interests. Whether the rule prevails in Louisiana is not before us for decision. Augustine was present in court. Although some information sought from him was not given because the witness resorted to the protection of the Fifth Amendment, the ultimate question — did the witness, instead of the defendant, commit the robbery — was answered in the negative.

For these reasons, there is no merit to the Bill of Exceptions.

The judgment and conviction are affirmed.

SUMMERS, Justice

(dissenting).

Aside from my objection to the “per cur-iam” nature of this opinion, I dissent because the opinion fails to establish whether the exception to the hearsay rule which defendant seeks to invoke is acceptable to Louisiana or not. Since I believe it should be accepted in this State, I believe the ruling of the trial judge was erroneous.

Extrajudicial confessions and admissions of third parties in crime cases are excluded because their introduction into evidence is held to be in violation of the hearsay rule. Hearsay evidence is excluded, to state the reason briefly, because it lacks the sanction of an oath, the test of cross-examination and facilitates the use of perjured testimony. These are sound reasons, and the rule is of great importance; but the rule is subject to many exceptions, one of which is the rule defendant seeks to invoke here. Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923).

This rule recognizes that if a third person confesses extrajudicially to the crime with which defendant has been charged, and that third person is not available for trial, then his confession should be admitted. It is a statement of fact against penal interest. The rule is justified as an exception to the hearsay rule because it may well be assumed that a confessor will not speak falsely to his own hurt. 29 Am.Jr. 2d, Evidence § 541. It is a rule supported by modern convincing authority. Mason v. United States, 257 F.2d 359 (10th Cir.1958).

In the application of the rule it has been held that one who refuses to testify because his testimony might incriminate him is considered unavailable as a witness, just as though he were beyond the reaches of the State, or had since died. If he is unavailable as a witness in this or some other sense, his confession may be used. Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318 (1950).

Thus in this case, since Augustine refused to answer some questions relevant to the confession issue on the grounds that the answers would incriminate him, he was, for all practicable purposes, unavailable to testify. It was error, therefore, for the trial judge to refuse to permit Shirley Lewis to testify that Augustine had said to her that he was the perpetrator of the crime with which the defendant Morrow *81was charged. By this ruling Morrow was denied the right to present evidence vital to his defense which he could present in no other way.