In discussing the errors complained of in the several bills of exception contained in the transcript the court in the opinion handed down made reference to certain facts stated in the per curiams of the trial judge. It developed on an application for rehearing that the per curiams were not properly before the court, and hence ought not to have been considered at all.
The per curiams were prepared and signed by the trial judge long after the appeal had been granted and after the transcript had been filed in this court, and were sent up in response to a writ of certiorari.
It is quite clear that the trial judge was without jurisdiction of the case at the time the per curiams were prepared and signed, and it is equally clear that this court was without authority to consider or to act on them.
The certiorari from this court issued improvidently and on a misapprehension of the facts. The application for certiorari was made by the district attorney, and it was issued by the Chief Justice on the hypothesis that the per curiams had been timely prepared and signed and were omitted from the original transcript through error or mistake.
The district attorney took no part in the trial below, and was not cognizant of what had transpired in that court; hence no criticism can attach to him for making the application for certiorari and none, of course, to the Chief Justice, who signed the order on the faith of the application.
We have carefully reconsidered the case solely on the bills of exception with the evidence thereto attached as brought up in the *Page 422 original transcript, and we are unable to discover any sufficient reason for changing our original opinion and decree.
All reference to the per curiams may be eliminated entirely from the opinion, and our conclusion on each bill remains unshaken. We might mention, however, the fact that in disposing of the eight bills of exception no reference whatever was made in the opinion to the per curiams to bills of exception 3, 5, and 8, and with respect to the per curiams to bills of exception 1, 2, 4, and 7, all of the material facts stated in the per curiams are to be found in the bills themselves or in the testimony attached to them and to bill No. 8, which was reserved to the denial of the motion for a new trial.
There are some facts stated in the ruling on bill No. 6 which were obtained from the per curiam to that bill, but such facts were not controlling, and may be wholly ignored and entirely disregarded without affecting our conclusion on bill No. 6 in the least.
The only reference to facts derived from the per curiam to bill No. 6, and not otherwise appearing from the record, is contained in the statement that the correct residence and place of abode was given in the subpœna for certain witnesses which the court on motion of the district attorney had ordered issued instanter, and that the sheriff's return thereon showed that the witnesses could not be found.
It appears from this bill that Mrs. D'Asaro, a witness for the state, and who was the wife of the victim of the crime charged against the defendants, had testified on cross-examination, in answer to a question propounded by defendants' counsel, that Felix Constanza, the father of one of the defendants (Sam Constanza), had told her that his son had committed the robbery. Felix Constanza was placed on the stand as a witness for the defendant, and on direct examination denied that he had made such a statement *Page 423 to Mrs. D'Asaro. On cross-examination of Felix Constanza the state, for the purpose of impeaching his testimony, and for that purpose only, asked him several times if he had visited the D'Asaros' house after the crime, and if he had not sent certain parties, naming them, to D'Asaro on behalf and in the interest of his son.
This was objected to for the reason that the evidence sought to be elicited was not connected with or incidental to any matters brought out on direct examination; that whatever the witness did out of the presence and hearing of the witness' son was not admissible against the son. The court ruled that the testimony was not admissible, unless for testing the credibility of the witness. Whereupon the district attorney stated that that was the purpose of the question. The court permitted the question for that purpose, and so informed the jury.
The counsel then made the further objection that the matter inquired about was collateral to the issue and should not be gone into at that time. This objection was overruled. The ruling was entirely correct. As we have stated, the court had permitted the question as tending to test the credibility of the witness, and had so instructed the jury. This limitation unquestionably stripped the matter of any probative force and effect as independent and collateral proof.
Moreover, the defendants themselves had opened up the inquiry by asking Mrs. D'Asaro who had told her that it was Felix Constanza's son who had committed the robbery; and in response to that question she had said that it was his father who had told her.
The defendants cannot be heard to complain that questions, having for their sole object the impeachment of their witness, tendered a collateral issue, when they had themselves provoked that inquiry.
Aside from this, however, the witness denied making the statement imputed to him *Page 424 by Mrs. D'Asaro, and he denied sending any persons to the D'Asaro house. No further attempt was made by the state to impeach the witness Felix Constanza in the matter involved, and the jury was left to determine the credibility of the two conflicting witnesses and the effect, if any, to be given the statement of Mrs. D'Asaro if her statement were accepted as true.
In the same bill of exception (6) the following question was asked Felix Constanza by the district attorney.
"Didn't you tell them to tell Mr. D'Asaro this: that on the night of the hold-up the D'Asaros were very much excited and thought they recognized the boys, and that the excitement had passed, and after thinking the matter over you believed they had made a mistake, and in consideration of this you offered to return the money D'Asaro had been put to for legal services?"
By Carbajal and Burke: "We object to that line of questioning as unfair."
The objection was overruled, but the particular question was not answered by the witness. We are unable to appreciate any harmful effect resulting from an unanswered question.
It is contended, however, that it was unfair and prejudicial to the accused for the state to attribute to a witness for the accused certain statements or acts of the witness, which were within themselves highly prejudicial to the accused, for the purpose of impeaching the witness, and then fail to produce the witnesses to sustain the proffered impeachment or to account for the non-production of such witnesses.
The record shows that, immediately following the last-mentioned question, objection, and ruling, the court, on motion of the district attorney, ordered instanter subpœna to issue for two of the witnesses by whom the state expected to contradict the witness Felix Constanza.
The record is silent, however, as to any reference to the matter after the incident referred *Page 425 to. There is nothing before the court to show that the impeaching witnesses were or were not sworn in the case. We assume, however, from statements of counsel that the witnesses were not sworn.
No reference as to the failure of the district attorney to place the witnesses on the stand appears to have been made in the argument to the jury by either the counsel for the state or those of the defense, and we are not advised that the court referred to the matter in its general charge.
We must assume that the court would have instructed the jury properly on the matter if it had been requested by counsel to do so. If counsel had felt that their clients' interest had been greatly prejudiced before the jury by the action of the district attorney in not producing the witnesses and in not giving any explanation for not producing them, after he had cross-examined Felix Constanza with that purpose in view, they, it seems to us, should have called the attention of the jury to that fact and asked for appropriate instructions from the court. So far as the record shows they did neither.
On the showing made, the court would not be authorized to impute to the district attorney insincerity in his attempt to lay a foundation for the impeachment of defendants' witness and to say that the district attorney acted in bad faith, well knowing that he could not make good his attempt at impeachment. Nor are we warranted in assuming that the jury considered the matter or was influenced by it to the prejudice of the accused. We would be far from holding that an intelligent and unbiased jury accepted as damaging evidence against an accused facts stated as a basis for impeaching a witness of the accused, in the face of the denial of such facts by the witness and where no proof had been offered by the state to sustain the attempted impeachment. *Page 426
Counsel for defendants cite, in support of their contention that the conduct of the district attorney was unfair and prejudicial to the interest of the defendants, the case of State v. Guagliardo, 146 La. 950, 84 So. 216. The facts of that case are dissimilar entirely to the facts of this case, and the ruling of the court cannot justify a reversal of the verdict of the jury in the instant case.
In the cited case one of the accused was a witness in his own behalf, and on cross-examination the district attorney asked him if he had not made statements to a number of designated persons, which, if true, would have been extremely damaging to the accused, declaring at the time that it was his purpose to impeach the testimony of the accused if he denied the facts imputed to him in the questions. As an illustration of the action of the district attorney we quote what he said to the accused as a witness in putting the question for the basis of impeachment:
"Now, I wish you to think again. I am going to give you a chance. I am placing you on your guard, and I intend to impeach your testimony."
The impeaching witnesses were not called to the stand, and no attempt was made to contradict the testimony given by the accused. But in the argument counsel for defendants asked the district attorney why he had not called the witnesses to the stand to impeach the defendants, and his reply was that it was not necessary to put witnesses on the stand to impeach Frank Jordano, "because he is a perjurer, a self-confessed perjurer."
No such case is presented here. The witness whom it was sought to impeach was not the accused, but was a witness placed on the stand by the accused for the purpose of denying a statement imputed to the witness by a state witness on cross-examination to the effect that the defendant witness had stated *Page 427 to the state witness that it was his son who had committed the robbery.
The district attorney did not warn the witness in presence of the jury that he intended to impeach the witness, but, when objection was made, the district attorney merely stated, "That is the purpose of the question," when the court ruled that the question was not permissible unless it tended to test the credibility of the witness.
A comparison of the case cited with the instant case discloses very little analogy, and certainly furnishes no precedent or authority for setting aside the verdict in this case.
The decree heretofore entered is reinstated and made final.
O'NIELL, C.J., concurs in the result.