One of the grounds upon which a rehearing is asked in this case is that the court failed to pass upon bill of exceptions No. 13. This bill was reserved to a question propounded on cross-examination by the state to the court reporter, a witness for defendant, under the following circumstances:
Joe Natale, defendant in a former trial, has a young son named Tony, who is the *Page 809 nephew of Tony Marsalise, one of the defendants here.
The court reporter's notes in the Natale case show that the state witness Sam Sheppard testified to the presence of "Tony and Mary Natale and Joe" at the time Sam Shepherd and Mike Natale left De Ridder for the purpose of going to Mansfield, La., to burglarize the store belonging to Frank Grocery Company.
Sam Sheppard, a state witness, testified in the present case that Tony Marsalise was present on the occasion above mentioned. It was sought to impeach him on the theory that the Tony referred to in the former case was not Tony Marsalise but Tony Natale. Sheppard insisted that he testified previously that Tony Marsalise was present.
The court reporter was then permitted to testify for defendants, over the objection of the state, as to what Sam Sheppard's testimony was in the Natale case, and stated that the notes of evidence of the Natale trial were correctly transcribed.
Thereupon the state, on cross-examination of the witness, asked the following question: "Is it not a fact that in referring to the defendant, Tony Marsalise, he was always referred to by his first name without the use of his last name?"
This question was objected to by counsel for defense "as assuming a fact not proven, and asking an opinion of the witness, and further, for the reason that the defendant, Tony Marsalise, was not a defendant in that case (Joe Natale case), and for the further reason, that it is not shown that Tony Marsalise was referred to at the time on this point, and the transcribed evidence in the Joe Natale case is the best evidence."
These objections were overruled by the trial judge, and the court reporter, as a witness *Page 810 for defendants, answered that she did not remember the name, "Tony Marsalise," having been mentioned, but the name of "Tony" was mentioned several times; that Joe Natale was commonly called and referred to by his first name, "Joe," but that she could not say, when the name "Tony" was used, whether it had referred to Tony Natale or to some one else. (Tr. pp. 235, 236.)
Manifestly, the answers of the witness were not prejudicial to defendants.
Bill No. 13 was acted upon in consultation, with the other bills, and was found to be without merit, before the original opinion was written in this case, but was omitted therefrom through inadvertence. As we find no merit in the grounds urged for rehearing, the application of defendants is overruled.