180 La. *779*

#### STATE v. PILCHER.

No. 32867.

Supreme Court of Louisiana.

Oct. 29, 1934.

James Madison, ■ of Bastrop, and G. R. Pilcher, of Baton Rouge, for appellant.

*592Gaston L. Porterie, Atty. Gen., Lessley P. Gardiner, Asst, to Atty. Gen., and A. B. Cavanaugh, Dist. Atty., of Leesville, for the State.

HIGGINS, Justice. •

The defendant was indicted on February 28, 1934, under Act No. 44 of 1890, for cutting with a dangerous weapon, a knife, with intent to kill. On March 5, 1934, he was convicted of the offense and on March 12, 1934, sentenced to the State Penitentiary for a period of not less than one year nór more than eighteen months. He then appealed.

The defendant pleaded self-defense, but during the course of the trial did not reserve any bill of exception. After being convicted, but before being sentenced, he filed a motion for a new trial based upon several grounds. The trial judge issued a rule to show cause why a new trial should not be granted and, on the hearing thereof, decided against the defendant on all points urged in the motion. Defendant in each instance reserved a bill of exception.-

The first bill of exception is based on the ground that, after having exhausted all of his peremptory challenges, defendant was forced to accept a juror who was biased and prejudiced against him because of a previous misunderstanding. The record shows that the juror after being examined on his voir dire was never challenged by the defendant for cause, but was accepted by him with full knowledge of the fact that there had been some previous unpleasantness between them. Having failed to challenge the juror for cause and consequently no bill of exception having been reserved, this matter cannot be reviewed on a motion for a new trial.

Bills of exceptions Nos. 2 and 3 relate to the ruling of the trial court to the effect that alleged newly discovered evidence tending to show the dangerous character of the prosecuting witness would not be admissible in evidence in the event a new trial was granted, because no overt act on the part of the prosecuting witness was shown before or at the time of the attack. The record shows that during the trial of the case an attempt was made to introduce similar evidence by other witnesses, but the trial court ruled that no overt act on the part of the prosecuting witness had been shown and, therefore, the proposed testimony was inadmissible. A bill of exception was not reserved.

The district judge having concluded that a proper foundation had not been laid for the purpose of introducing such evidence and a bill of exception not having been reserved, it is obvious that defendant has no right to have the matter reviewed on a motion for a new trial.

Furthermore, it is clear that these bills of exceptions are without merit because in the ease of State v. Richardson, 175 La. 823, 144 So. 587, this court held that in a homicide prosecution where the defendant interposed a plea of self-defense, evidence of the dangerous character of the deceased is inadmissible until the defendant has proved to the judge’s satisfaction that the deceased first made a hostile demonstration. See, also, State v. Poole, 156 La. 434, 100 So. 613.

Bills of exceptions Nos. 4, 5, and 6 raise the legal questions presented in bills Nos. 2 and 3, with this difference, that the witness who offered to testify concerning alleged newly discovered evidence as to the dangerous character of the prosecuting witness testified in the trial of the case. In his per curiam in connection with these bills, the trial court points out that this testimony could not be considered newly discovered evidence and, consequently, could not form the basis of a new trial, since the witness had testified in the original trial. If the alleged newly discovered evidence as to the dangerous character of the prosecuting witness could not be introduced in evidence in the original trial of the case because the trial judge was satisfied that the defendant was the aggressor and that the prosecuting witness had made no hostile demonstration at the time of the difficulty, this alleged newly discovered evidence cannot form the basis of a motion for a new trial. State v. Vige, 137 La. 130, 68 So. 383; State v. Champagne, 160 La. 47, 106 So. 670; State v. Johnson, 170 La. 1050, 129 So. 633.

Bill of exception No. 7 covers the six preceding exceptions, with these added points: (1) That the accused was not allowed sufficient time to prepare for trial; and (2) that the evidence was insufficient to establish one of the essential elements of the crime, to wit, intent to kill.

Wi,th reference to the first complaint, it is sufficient to say that when the accused was called for trial, his counsel made no objection and did not request a continuance but announced himself ready.

The second ground involves a question of fact, and the jury and the trial court having been satisfied as to the sufficiency of the evidence to prove intent to kill, the matter *593cannot be reviewed by us, since it' does not present a question of law.

Eor tbe reasons assigned, tbe verdict and sentence are affirmed.

O’NIELL, C. J., concurs in tbe result and hands down reasons.

O’NIELL, Chief Justice

(concurring in tbe decree).

My only reason for concurring in tbe decree rendered in this case is that the complaints which the defendant made in his motion for a new trial, and in the bill of exceptions which he reserved to the overruling of his motion, were abandoned by his failure to object and to reserve bills of éxception during the trial. It is too well settled to require citation of authority that a defendant in a criminal prosecution cannot successfully set up by way of a motion for a new trial complaints of rulings which he failed to except to during the progress of the trial.

In State v. Richardson, 175 La. 823, 144 So. 587, a majority of the members of the court — of which majority I was not one— were of the opinion that the question whether the defendant or the man whom he killed was the aggressor in the fatal difficulty was a question for the judge to decide; hence the conviction and sentence in that case were set aside and the case was remanded for a new trial because the court decided from the evidence that the man who was killed was the aggressor in the fatal difficulty. Eor that reason the court — or a majority of the members of the court — ruled that the trial judge was wrong in his refusal to admit evidence of the dangerous character of the man who was killed. My own opinion was, and is yet, that the evidence of the dangerous character of the man who was killed was admissible for the purpose — and only for the purpose — of corroborating the testimony to the effect that the man who was killed was the aggressor in the fatal difficulty and that the defendant acted in self-defense.

Of course, if this court, or the Legislature, should adopt a rule of evidence to the effect that evidence should not be admissible at all to prove previous threats or the dangerous character of the prosecuting witness in a case like this, or of the party killed in a homicide case, the rule would not be an anomalous rule, although it would be a harsh rule. But it is conceded that, under the law of this state, such evidence is admissible in such eases, in support of a plea of self-defense. And it is, or must be, conceded that such evidence is not relevant to any other question but the question whether the defendant acted in self-defense. Wharton’s Criminal Evidence (10th Ed.) vol. 1, p. 246," No. 63a. It is well settled also that the defendant in a case like this, or in a homicide case, does not bear the burden of proof that he acted in self-defense, because the state must prove beyond a reasonable doubt that the defendant acted willfully, and not in self-defense. 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; State v. Johnson, 149 La. 927, 90 So. 257, 258; State v. Scarborough, 152 La. 677, 94 So. 204; State v. Vial, 153 La. 883, 96 So. 796; State v. Linden, 154 La. 66, 97 So. 299; State v. Conda, 156 La. 679, 101 So. 19. These decisions have never been overruled, and there is no authority whatever to the contrary.

I adhere, therefore, to what I said in State v. Richardson, that a rule of evidence which concedes that evidence of the dangerous character of the deceased or injured person, or of previous threats made by him, is admissible in a case like this, or in a homicide case, for the purpose only of corroborating the testimony to the effect that the defendant acted in self-defense — and which forbids the defendant to introduce such evidence until he has proven to the satisfaction of the judge that he acted in self-defense — is such 'an inconsistent, illogical, and unreasonable rule that it violates the due process clause of the Constitution of the United States (Const. U. S. Amend. 14, § 1), besides violating the fundamental guaranty in our state Constitution, that the jury shall decide all questions of fact on which depends the question of guilt or innocence of the party accused. The rule declares that the evidence is admissible, but forbids the defendant to introduce it until he has proven his innocence and therefore has no need for the evidence. Why should a defendant ever offer such evidence as relates to his plea of self-defense, after he has proven to the satisfaction of the judge that he acted in self-defense, and is entitled to a new trial if the jury convicts him?