State v. Lemond

O’NIELL, J. The defendant was convicted of the crime denounced by Act No. 43 of 1912, that of obtaining or attempting to obtain money or property from another by means of a false or bogus check or by a confidence game. On appeal, he relies upon a bill of exception reserved to a ruling of the trial judge, denying his request to have a witness who had testified on behalf of the state recalled for further cross-examination to lay the foundation to impeach her testimony. [1,2] The statement per curiam discloses that, after the witness had been cross-examined by the attorney for the defendant, the attorney requested the judge to say whether a basis had been laid to impeach her. The judge declined to decide the question unless and until an olfer should be made to impeach her. After the district attorney announced that the state’s case was closed, except for rebuttal, the defendant’s attorney requested that the state’s witness, whose testimony he desired to impeach, be recalled for further cross-examination to lay a foundation for the impeachment. The district attorney objected to the recalling of the witness, on the ground that the defendant’s counsel had had ample opportunity to cross-examine her as far as he saw fit. It is recited in the statement per curiam that the defendant’s attorney had cross-examined the witness at length; and, for all we know, the defendant’s counsel had laid a sufficient foundation for the impeachment of her testimony. No reason is assigned by the learned counsel for the defendant for his failure to attempt to impeach the state’s witness. He admits that he believed he had laid a sufficient foundation for the impeachment, when he requested the trial judge to rule on that question. The proper proceeding would have been to offer to impeach the state’s witness, before demanding that the latter be recalled for further cross-examination. The defendant cannot complain that he was denied the right to impeach a state’s witness whom he made no attempt or offer to impeach. The verdict and sentence appealed from are affirmed.