The defendant was charged with the murder of one Elmer Dunnington, and was convicted of manslaughter. His appeal brings up two bills 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 *Page 875 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 notone 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 theargument; 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 *Page 876 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 briefargument 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 theopposite 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 *Page 877 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. And 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 standing 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 more in hisback — these last put there by this accused, after the firing between 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 *Page 878 on the part of Dunnington towards Bates; we find not even anyevidence 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 wenttowards Dunnington, 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 wasdying when he stumbled towards Bates and fell over him.
And there is also evidence that Bridges, this accused, was evensupporting Dunnington 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 overt 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, C.J., 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. *Page 879