213 La. 528

#### STATE v. CHEVALLIER.

No. 38531.

Supreme Court of Louisiana.

March 22, *1948.*

Dissenting Opinion March 23, 1948.

*136John R. Hunter & Son, of Alexandria, and Arthur Taliaferro, of Harrisonburg, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Jesse C. McGee, Dist. Atty., of Harrisonburg, and S. R. Thomas, of Natchitoches, for appellee.

O’NIELL, Chief Justice.

The appellant, Ben Chevallier, was prosecuted for the murder of one Ernest Prit-chard, was convicted of manslaughter and sentenced to imprisonment in the penitentiary for ten years. He reserved six bills of exception during the trial but has abandoned four of them.

One of the two bills that have not been abandoned has reference to a ruling of the .judge sustaining an objection made by the prosecuting attorney to a question propounded by the attorney for the defendant to a witness for the state,- on cross-examination. The witness, Mrs. Geneva Prit-chard, a sister-in-law of the deceased, was present during the fatal difficulty. It occurred just outside the door of a barroom, in which the parties had been drinking. Ernest Pritchard was very drunk and quarrelsome, and his father, John Pritchard, was escorting him out of the barroom trying to quiet him. The objection to the question propounded to Mrs. Pritchard arose when the defendant’s attorney attempted to prove by her what John Pritchard said to his son, Ernest, while escorting him out of the barroom. The reason for the objection was not stated at the time when it was made, but the record discloses that the objection was that the statement of John Pritchard to his son was not a part of the res gestae. The statement was, as subsequently related by John Pritchard in his testimony: “Go on and be quiet.”

. There are two reasons why the judge’s ruling was not harmful to the defendant. The first of these reasons is that, although Mrs. Pritchard testified that she heard John Pritchard say something to his son Ernest immediately before the shooting, she testified also that there were so many of them talking at the time that she could not' remember what any of them said.

The second reason why the judge’s ruling, sustaining the objection to the question propounded by the defendant’s attorney to the 'witness, Mrs. Pritchard, was not harmful to the defendant is that John Pritchard himself, afterwards, on cross-examination, related what he had said to his son Ernest at the time when he escorted him out of the barroom. He testified that Ernest was drunk and quarrelsome and that he, the father, told Ernest: “Go on and be quiet.” The purpose and the importance of proving that John Pritchard made that statement to his son immediately before the shooting was that it tended to prove that Ernest Pritchard was in a belligerent mood and was provoking the difficulty. The defendant received the benefit of the evidence directly from the witness, John Pritchard. It would not have added anything to the evidence if Mrs. Geneva Pritchard, as a witness in the case, had remembered and had testified that she heard John Pritchard tell Ernest: “Go on and be quiet.” There is no merit in this bill of exceptions.

The other one of the two bills of exception which have not been abandoned was reserved to the overruling of an objection made by counsel for the defendant to certain testimony given by the state’s witness, John Pritchard. Pie is the one who made the charge which resulted in the indictment of Ben Chevallier for the murder of Ernest Pritchard. John Pritchard, having been present during the fatal difficulty, was an important witness for the state. He testified over the defendant’s objection, on redirect examination, that he did not want to file a charge against Ben Chevallier, or to have a warrant issued for his arrest, until he, the witness, could make an investigation of the matter and “find out the whole story”; and that he made the investigation and, “after finding out the whole story,” filed the charge on which Ben Chevallier was indicted. The' objection to the testi*137mony was that the witness, John Pritchard, was allowed to státe to the jury his opinion — founded, not upon the information which he had gained as a witness to the fatal difficulty, but upon that which he gained afterwards from other persons in his investigation of the case- — that Ben Chevallier was guilty of murder.

The attorneys for the appellant rely upon the decision rendered in State v. Borde, 209 La. 905, 25 So.2d 736, 739, which supports their bill of exceptions exactly. In the case cited, Borde w;as prosecuted for a capital offense and was found guilty without capital punishment. We set aside the verdict on two grounds, one of which was that a deputy sheriff, as a witness for the state, was allowed to testify, over the defendant’s objection, that as a result of an investigation made by him, the deputy sheriff, after the defendant was arrested, he was not released from custody. In sustaining the objection, the author of the opinion stated:

> “Such testimony is immaterial and irrelevant to the issues of the case and could have no other effect than-to convey to the jury the witness’ belief that the defendant was the guilty- party, contrary to our jurisprudence that a witness is never allowed to express- an opinion or suspicion as to the guilt or innocence of an accused. State v. Robertson, 111 La. 35, 35 So. 375; State v. Bessa, 115 La. 259, 38 So. 985; State v. Vinzant, 200 La. 301, 7 So.2d 917; 2 Wharton’s Criminal Evidence 1658, Sections 944 and 945; Underhill’s Criminal Evidence 429, Section 230; and 20 Am.Jur. 633, Section 763.”

In the instant case the prosecuting attorney, in questioning the witness, John Prit-chard, in such a way as to show that Prit-chard’s opinion of the guilt of Ben Chev-allier was founded upon facts which the witness had obtained from other persons in the investigation which he made subsequent to the killing, assumed that the witness had testified already that he did not want to have a warrant issued for the arrest of Ben Chev-allier until he, the witness, would make an investigation and “find out the whole story.” But the prosecuting attorney was mistaken in assuming that the witness had so testified. The prosecuting attorney prefaced his ques-. tioning of the witness, John Pritchard, on re-direct examination, thus:

> “Q. In response to questioning you said you didn’t want to have a warrant issued until after you found out the whole story- - what was the whole story? A. I found out all about it later.

> “Q. What was it?”

Here counsel for the defendant objected to the witness’ relating what he had found out in his investigation of the.case, and the judge sustained the objection. But immediately thereafter the prosecuting attorney propounded the question which showed that the -opinion which the witness had formed was founded upon the investigation which he had made subsequent to the homicide— thus:

> “Q. You didn’t [needn’t] say what you found out, but after finding it out, after your investigation, did yo'u file charges ? ”

Here the defendant’s . counsel objected; the objection was overruled; and the witness answered: “Yes.”

All of the testimony given by the witness, John Pritchard, was taken down steno-graphi'cally and is áttached to the bill .of exceptions. It leaves no doubt that' the prosecuting attorney was mistaken in assuming, when he began his re-direct examination of the witness, that he had testified already — presumably on cross-examination — that he didn’t want to have a warrant issued for the arrest of Ben Cheval-lier until he, the witness, could make- án investigation, and find out “the whole story.” Except in. his answer to the question propounded by the prosecuting attorney on redirect examination of the witness, the latter did not at any time say that he did not want to have a warrant issued for the arrest of Ben Chevallier without first making an investigation and finding out the whole story.

The judge, in his per curiam, attached to* this bill of exception, reveals that he misunderstood the objection. His understanding, as shown by his per curiam, was that counsel for the defendant objected merely to the allowing of the witness to testify to the fact that he filed the charge against Ben Chevallier. Under that belief, the: *138judge overruled tlie objection for the reason that it could cause no harm to the defendant for the witness merely to verify the fact, which the record itself showed, that the witness was the one who had filed the charge against Ben Chevallier. The per curiam reads as follows:

> “It should be observed that the witness was permitted to testify only to the fact that he filed charges. While it is true the record itself would be the best evidence of this fact, a verification thereof by the signer of the affidavit himself could in no way injure the cause of the accused.”

The objection to the testimony was, not that it showed who filed the charge •against the defendant, but that it showed that the party who filed the charge based his conclusion as to the defendant’s guilt, not upon facts which he learned as a witness to the fatal difficulty, but upon facts which he learned from other persons in the investigation which he, the witness, made subsequent to the killing. Our conclusion is that this bill of exception is sustained by the ruling in State v. Borde, 209 La. 905, 25 So.2d 736.

The verdict and sentence are annulled and the case is ordered remanded to the district court for a.new trial.

HAMITER and HAWTHORNE, JJ., dissent.

HAWTHORNE, Justice

(dissenting).

I cannot agree with the ruling of the majority that the bill of exception on which the conviction and sentence were reversed has merit.

The testimony of the witness Pritchard on redirect examination by the State, taken down by a stenographer and made a part of the bill, reads as follows :

> “By Mr. Thomas:

> “Q. In response to questioning you said you didn’t want to have a warrant issued until after you found out the whole story — ■ what was the whole story? A. I found out all about it later.

> “Q. What was it?

> “Mr. Plunter, Jr.: Objected to.

> “Court: Objection sustained.

> “Q. You didn’t say what you found, out, but after finding it out, after your investigation, did you file charges ?

> “Mr. Hunter, Jr.: Objected to.

> “Court: Objection overruled.

> “A. Yes.”

The per curiam of the trial judge, incorporated in the bill, reads thus:

> “It should be observed that the witness was permitted to testify only to the *fact*that he filed charges. While it is true the record itself would be the best evidence of this *fact,*a verification thereof by the signer of the affidavit himself could in no way injure the cause of the accused.” (Italics mine.)

It is to be observed from the bill of exception and the testimony of the witness made a part thereof that the attorney for the defendant objected to the question but stated no ground whatsoever as a basis for his objection. This is one reason which leads me to conclude that the bill is without merit, for I understand the law to be well settled that a bill of exception must contain the question objected to and *the grounds of objection.*State v. Green, 36 La.Ann. 185; State v. Carroll, 160 La. 199, 106 So. 782; State v. Keife, 165 La. 47, 115 So. 363; State v. Antoine, 189 La. 619, 180 So. 465; 2 Marr, Criminal Jurisprudence (2d ed.), Sec. 730.

In State v. Keife, supra [165 La. 47, 115 So. 365], this court said:

> “It is elementary that an objection to testimony must state the specific grounds upon which it is based, in order that the court may be given an opportunity to rule intej-ligently as to its admissibility.”

In State v. Carroll, supra, an objection was made that the testimony incorporated in two bills of exception was not admissible, counsel giving no specific ground for its inadmissibility. In disposing of these two bills, we stated [160 La. 199, 106 So. 783]:

> “ * * * We are not advised what objection defendant had to the proffered testimony, and we are not required to explore the wide field of evidence to discover some possible ground on which the evidence might or should have been excluded. * * ”

*139In the recent case of State v. Antoine, supra, this rule is expressed as follows [189 La. 619, 180 So. 466] :

> “During the trial of his case, defendant reserved a bill of exception to the ruling of the court overruling his objection to certain questions asked a defense witness under cross-examination. A mere reading of the testimony objected to conclusively shows that the bill of exception is without merit. Moreover, the defendant in urging his objection and reserving his bill of exception did not show ‘the grounds for the objection and the error complained of, so as to give the trial judge an opportunity to correct his error,’ and, therefore, could not take advantage of the exception on appeal. State v. Lanning, 134 La. 209, 63 So. 878. See, also, State v. Ricks, 170 La. 507, 128 So. 293.”

This rule is set forth in State v. Ricks, cited in the quotation -from the Antoine case, in language even stronger than that used in the Antoine case [170 La. 507, 128 So. 296]:

> “It is well settled that a bill of exceptions must state the grounds of objection and point out specifically the errors complained of, in order than an opportunity may be given the trial judge to correct them; if not sufficiently specific, it will not afterwards avail the party raising it. * * *

> “Counsel for defendant states in his brief these objections to the charge specifically, but the useful time and place for stating them was before the trial judge before the verdict.”

The majority opinion, in effect, overrules all these cases and others without specifically naming them.

Counsel in the instant case having failed to state the specific grounds on which the objection was based, the judge of the lower court certainly did not have an opportunity to rule intelligently thereon or to correct his error, if any. Furthermore, the fact that the judge did not understand on what specific grounds the objection was made is clearly shown in the majority opinion itself, from which I quote:

> “ * * * His [the trial judge’s] understanding, as shown by his per curiam, was that counsel for the defendant objected merely to the allowing of the witness to testify to the *fact*that he filed the charge against Ben Chevallier. Under that belief, the judge overruled the objection for the reason that it could cause no harm to the defendant for the witness merely to verify the *fact,*which the record itself showed, that the witness was the one who had filed the charge against Ben Chevallier, * * ” (Italics mine.)

Moreover, although I recognize and approve the general principle, of law that in a criminal case testimony of a witness expressing an opinion as to the guilt or innocence of the accused is not admissible, I cannot agree with the majority’s conclusion that the testimony of the witness PriL chard, quoted hereinabove, was inadmissible for this reason. In the instant case, the'witness merely answered “Yes” to the question of whether he filed charges after an investigation from which he found out certain information (not given in testimony), and did not in any way express an opinion as to the guilt or innocence of the accused. For this reason, in my opinion, the general rule of criminal law applied in the majority opinion is not applicable in this case.

As I interpret the testimony, the witness was not expressing an opinion; he ■ was testifying merely to the existence of *facts,*that is, that he made an investigation, ’ and that he filed charges.

For reversal under this bill, defendant relies on the case of State v. Borde, 209 La. 905, 25 So.2d 736, an extract from the opinion in which is quoted with approval in the majority opinion in this case. There is grave doubt in my mind that the admission of the testimony objected to and forming the basis of defendant’s bill in that case constituted reversible error. As I see it, the witness was testifying in that case, as in the instant case, only to facts within his knowledge and was not giving opinion evidence.

I respectfully dissent.