175 La. 872

#### STATE v. BRIDGES.

No. 32047.

Supreme Court of Louisiana.

Oct. 31, 1932.

Rehearing Denied Nov. 28, 1932.

*603Reid & Reid, of Hammond, and Win. II. McClendon, Sr., of Amite,-for appellant.

Gaston L. Porterie, Atty. Gen. (James O’Connor, Asst. Atty. Gen., Robert S. Ellis, Jr., Dist. Atty., of Amite City, and James O'Niell, Sp. Asst. Atty. Gen., of counsel), for the State.

ST. PAUL, J.

The defendant was charged with the murder of one Elmer Dunnington, and was convicted of manslaughter. His appeal brings up two hills of exception; of which, one is an application for a new trial, based solely on the alleged insufficiency of the evidence to convict, and therefore presenting nothing for our consideration; the other being a bill reserved to the refusal of the trial judge to admit evidence of the alleged dangerous character of the deceased.

I.

“The settled jurisprudence of this state is that, in a prosecution for murder, evidence of the dangerous character of the deceased and of prior threats by him against the accused is inadmissible until and unless an overt act or hostile demonstration by him toward accused has been proved to the satisfaction of the trial judge.” State v. Brown, 172 La. 121, 133 So. 383, 385; citing, State v. Dreher, 166 La. 924, 118 So. 85; State v. Harvey, 159 La. 674, 106 So. 28; State v. Poole, 156 La. 434, 100 So. 613; State v. Benoit, 144 La. 276, 80 So. 329; State v. Boudreaux, 137 La. 227, 68 So. 422; State v. Varnado, 131 La. 952, 60 So. 627.

This rule has now been made *statutory.*The Code of Criminal Procedure (Act.No. 2 of 1928) provides:

> “Art. 482. 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.” (Italics ours.)

And: “Mere *evidence*of such threats [hostile demonstration] as distinguished from *proof*thereof, is insufficient.” State v. Sandiford, 149 La. 934, 90 So. 261, 267; State v. Poole, 156 La. 434, 100 So. 613.

However, “it is also well settled that, if a trial judge, after hearing the testimony offered in support of the accused’s contention that deceased was guilty of hostile demonstrations or an overt act, decides that no overt act was committed, his ruling on that question is subject to review by this court on appeal.” State v. Brown, 172 La. 121, 133 So. 383, 385; citing State v. Dreher, 166 La. 924, 118 So. 85; State v. Harvey, 159 La. 674, 106 So. 28; State v. Poole, 156 La. 434, 100 So. 613; State v. Benoit, 144 La. 276, 80 So. 329; and State v. Clark, 142 La. 282, 76 So. 714.

II.

The recital of this homicide is a long one, because the witnesses were many; but the *“action”*of the tragedy itself was as sudden, short, and bloody as its origin was trivial; for not *one*life only but *two*were snuffed out in a moment (“two seconds,” says one witness), after a brief *argument*as “silly” and unprofitable as a debate about the number of the fixed stars — whether odd or even?

It was the night before the election, a primary election for a high state office; wherein X and Y were candidates. The accused and his uncle, one Milton (Red) Bates, were supporters of X; and the deceased, Elmer Dunnington, was supporting candidate Y. But the *merits*of the election itself were not involved in the *argument;*there was no discussion about the *issues*of the campaign; nor were the *qualifications*of the candidates in dispute at all. The only matter about which there was any difference and controversy was simply — whether Bates had a man, a supporter of X, to wit, this accused, who could “whip” *any*supporter of candidate Y. But neither Bates nor Dunnington, the principals in the brief *argument*which ended so disastrously, will ever know who was right and who was wrong on *that*score; for both have now gone where such matters are only of minor importance, if of importance at all.

III.

This homicide occurred some time after 10:30 that night. Shortly before it, Bridges, the accused, had been fighting with one Wiggins(?), the details whereof are neither given nor material. But Bridges seems to have been the victor, for he came away from the scene of the scuffle shouting “Hooray for X”; to which Dunnington answered, “Hooray for Y.” This seems to have irritated Bridges, for he then tried to “get Elmer,” but was “grabbed” and taken away by his uncle, Bates; who would not allow him to follow Dunnington as he withdrew into a nearby restaurant, where he had coffee.

Dunnington, after having his coffee, left the restaurant, but remained outside. Twenty minutes later Bates and Bridges came to the restaurant, where they also had coffee; and where Bates endeavored to place a bet on the result of the election, but was unsuccessful. Bates and Bridges then left the restaurant; but, instead of going towards their own parked car, they went in the *opposite*direction, towards Dunnington, who was still standing near the entrance to the restaurant.

It was then, on approaching Dunnington, *after*having previously stopped his nephew’s attempt to follow Dunnington, that Bates remarked, addressing himself to Dunnington, that he had a supporter of X, “who could whip any Y man in the crowd”; for there were some persons gathered on the street. *604And it was *then*that Dunnington answered that he (Dunnington) “was a Y man, and there was no one there who could whip him.”

Some words followed between Bates and Dunnington, but no one seems to have heard them; and Bridges, this accused, was then stranding *apart from them.*Then Bates advanced on Dunnington, 'cursing and exclaiming to the bystanders, “Get back; and I’ll show him,” whilst Dunnington said at the same moment, “Get back; this is my affair.” And the evidence is all but conclusive that Bates, with an “automatic” in his hand, fired *three times*into Dunnington before the latter fired at all.

Then the firing became general; with the result that, when Bates ceased firing because the magazine of his “automatic” had been emptied, he lay mortally wounded near the curb, struck once in the groin and once in the ankle by bullets from Dunnington’s revolver; a third bullet going astray as Dunnington stumbled towards him and fell over him, *dying;*with the stock of his “pearl-handled, nickel-plated” revolver shattered, and *seven*bullet wounds in the front of his body — ; *also six m.ore in his bade*— these last put there by this accused, *after the*firing *be*tween Bates and Dunnington had ceased; his explanation (to the night marshal who arrested him) being, “I had to do it. He was killing my uncle.”

IV.

We therefore find in this record no *proof*of any prior overt act or hostile demonstration on the part of Dunnington towards Bates; we find not even any *evidence*to that effect. Bates sought the difficulty; he knew that Dunnington had *retreated*when his nephew sought to follow and had been stopped by himself. He *returned,*with his nephew, to the place to which he knew Dunnington had retreated; he himself being *then*armed with an “automatic,” and his nephew armed with what the witnesses describe as a “big” gun. On leaving, he went *toioards*Dunning-ton, not towards his car, which -stood parked in the *opposite*direction. He threw out his *challenge*to Dunnington, and then *advanced*upon him, and *fired first;*and Dunnington was *dying*when he stumbled towards Bates and *fell over him.*

And there is also evidence that Bridges, this accused, was even *supporting Dunning-ton*as he was stumbling forward — and perhaps even then firing into Dunnington’s back. And there is evidence that Bridges fired into Dunnington’s body even as he lay *dying*across the uncle’s body.

V.

The trial judge says, “No oyert act or hostile demonstration on the part of the deceased has been established.” In this we see

no error. The evidence tendered was wholly irrelevant.

Decree.

For the reasons assigned, the judgment appealed from is affirmed.

O’NIELL, O. .1., concurs in the decree because there was no evidence that Dunnington was the aggressor, and hence no issue as to who was the aggressor in the fatal difficulty.