The defendant appeals from his conviction and sentence to death for the murder of John O'Brien on July 26, 1960. LSA-R.S. 14:30.
During the course of trial some confusion arose as to the numbering of bills of exceptions, but we find from the record that the trial judge assigned numbers to them; as thus numbered, we are presented with ten bills of exceptions for our consideration.
Bill of Exceptions No. 1 was reserved when the trial judge overruled and denied defendant's motion to quash the indictment filed against him.
In substance, the motion to quash was leveled primarily at the insufficiency of the indictment insofar as it failed to meet and satisfy the requirements of the LSA-Constitution of 1921, particularly Article I, Sections 9 and 10. In brief filed in this Court counsel argue:
LSA-R.S. 15:235 provides that the following form of indictment may be employed in the case of a charge of murder: "A.B. murdered C. D."
In State v. Fulghum, 242 La. 767, 138 So.2d 569, the defendant was charged with murder under the short form of indictment; he filed a motion to quash, averring that insofar as LSA-R.S. 15:235 related to the crime of murder it was unconstitutional, null, and void, for the reason that it did not require the recital of any facts constituting a crime under the laws of Louisiana; he also contended that he was deprived of certain enumerated constitutional rights. We found no merit in the contentions, stating that the constitutionality of LSA-R.S. 15:235 had been set at rest. We said, "This Court has found that a murder indictment, drawn in short form, adequately informed the defendant of the nature and cause of the accusation. * * *" See, State v. Elias, 234 La. 1, 99 So.2d 1; State v. Scott, 223 La. 769, 66 So.2d 802; State v. Holmes, 223 La. 397, 65 So.2d 890.
Defendant herein argues, however, that in State v. Straughan, 229 La. 1036, 87 So.2d 523, this Court recognized that the specific short forms were not sufficient in all instances;
In State v. Eyer, 237 La. 45, 110 So.2d 521, this Court explained the Straughan case, supra,
Murder, being a well defined crime, may therefore be charged in the short form of indictment as employed herein.
Bill of Exceptions No. 1 is without merit.
Bill of Exceptions No. 2 was reserved to the overruling and denying of defendant's motion to have the court declare insufficient the answers to the bill of particulars filed by the district attorney; the motion recites in part:
LSA-R.S. 14:30 provides that:
In State v. Rowan, 233 La. 284, 96 So.2d 569, this Court stated that Article 30 of the Louisiana Criminal Code describes two sets of circumstances under which the crime of murder can be committed. We also said that the crime could be committed under any one of the two sets of circumstances as well as under a combination of the circumstances, set out in Subsections (1) and (2). We then held, "The State's answer to the motion for a bill of particulars shows that the crime in the instant case is alleged to have been committed under circumstances set out in both subsections of the article. In short, murder can be committed under Subsection (1) or under Subsection (2) of the article or under both subsections at the same time, which is exactly what is alleged to have happened in the instant case. Consequently the judge erred in ordering the State to elect." See, State v. Thomas, 240 La. 419, 123 So.2d 872.
Under the above jurisprudence the trial judge was correct in the instant case in not ordering the State to allege under which subsection of LSA-R.S. 14:30 it was proceeding. In its answers to Bill of Particulars
The State's answer, "Decedent's death was caused by wounds inflicted by the pistol of the defendant in the early morning hours of the date charged in the indictment," to Question No. 8, and the statement annexed to the answer, supplied information as to the cause of death and as to the time of death.
Question No. 9 read, "If the defendant is being charged and prosecuted under Article 30, Subsection 2, what was the date and time of the perpetration or attempted perpetration of any felony on the part of the defendant?" The State answered that the date and time were the same as those set forth in its answer to Question No. 8.
We agree with the trial judge that the answers supplied by the State were sufficient to inform the defendant of the nature of the charges preferred against him.
Bill of Exceptions No. 2 is therefore without merit.
Bill of Exceptions No. 3 was reserved to the trial court's overruling and denying a motion of defendant's counsel for a psychiatric examination of the defendant.
The events leading to the reservation of this bill are to the effect that the defendant was arraigned on November 10, 1960 and plead "Not Guilty." His counsel was given thirty days to file any technical pleadings; a motion for a bill of particulars was filed December 13, 1960. Answers were filed May 18, 1961; included therein was a statement which was later introduced in evidence as the confession of the defendant. The answers to the motion for a bill of particulars were received by counsel for the defendant no later than two days after they were filed. On June 5, 1961, the motion to quash was taken up, argued and overruled; counsel for the defendant then filed the following motion for a lunacy commission to examine the defendant:
The motion for psychiatric examination filed June 5, 1961 was argued and overruled. The case then proceeded to trial.
In this Court counsel for the defendant contend that the trial judge abused his discretion in not ordering the defendant transferred to the East Louisiana State Hospital for observation and examination, and that LSA-R.S. 15:267 is a clear mandate to the court to have the court examine the defendant for the purpose of determining his mental condition; they rely on the case of State v. Gunter, 208 La. 694, 23 So.2d 305.
In his per curiam the trial judge states:
We have examined the statement alleged to have been given by the defendant after the commission of the instant crime; we find nothing in its contents to indicate that defendant was not mentally competent to give the statement, or that he was not mentally capable of understanding the gravity of the situation confronting him at the time he gave the alleged confession.
The statement is an admission of guilt. In answer to questions propounded to him the defendant said in gist that previous to the date of the present offense he and Calvin Newman Carney had gone to the scene of the instant crime (a filling station) for the purpose of robbery, but they felt that the time was not propitious; that the next day (Monday, July 25, 1960) he bought a pistol, a 32 colt, for which he paid a man $17.00; that during the early hours of Tuesday morning he and Carney met; that at his request Carney called his (defendant's) wife and the two spoke with her; that later the two went to the filling station where the attendant, the victim of the instant crime, emerged and stood approximately four feet away from the car in which he and Carney were riding; that without giving the attendant any warning, he shot him. The following questions and answers are pertinent:
The case of State v. Gunter, 208 La. 694, 23 So.2d 305, is not apposite. In that matter, there were certain evidentiary facts presented to the court which made the sanity of one of the defendants questionable; this Court held that the trial judge abused his discretion by not granting a sanity hearing to that particular defendant.
In the instant matter, there were no evidentiary facts of insanity, nor was there any showing of a possibility or probability of insanity which would have justified the granting of the order requested in the motion.
We do not find that the trial judge abused his discretion in not granting the motion for a psychiatric examination.
Bill of Exceptions No. 3 is without merit.
Bill of Exceptions No. 4 was reserved to the overruling of a motion by counsel for the defendant to have the courtroom cleared of prospective jurors prior to any discussion of the alleged confession or statement and to have the trial stayed until such time as the mental condition of the defendant could be determined.
In contending that the ruling of the trial judge was erroneous, counsel for the defendant argue in brief that the clearing of the courtroom "was necessary because defendant's attorneys felt that it was necessary to discuss the confession and its contents during their argument on the motion for phychiatric examination and on the motion for continuance. The court refused to do so. Defendant's attorneys feel that this is prejudicial to the rights of the defendant. This discussion came prior to the Court's ruling on the admissibility of the confession and should not have been discussed in the presence of any juror or prospective jurors."
Defendant has not shown, and we do not find that he was prejudiced by the ruling of the trial judge. LSA-R.S. 15:557. We believe that in the following per curiam the trial judge clearly answers the contentions advanced by counsel:
Bill of Exceptions No. 5 was reserved to the trial court's denial of defendant's motion for a continuance.
Counsel for the defendant state that they did not have sufficient time to prepare a defense to the alleged confession, its contents having been made known to them only a few days prior to the date of trial.
The facts of record show that the alleged confession was taken on the afternoon of July 27, 1960; it was written in shorthand by Mrs. Corinne Watson, Deputy Sheriff and Stenographer of the Tangipahoa Parish
In his per curiam the trial judge states that counsel for the defendant had some fifteen days in which to prepare a defense to the alleged confession, and that he feels that this was sufficient time.
In State v. Roberson, 157 La. 974, 103 So. 283, this Court in considering a motion for a continuance in which counsel contended that there was not sufficient time to prepare a defense, the matter being fixed for trial the fifth day after their appointment, stated:
The matter of granting or refusing a continuance addresses itself to the sound discretion of the trial judge; a review on appeal is granted when there is an arbitrary or unreasonable abuse of such discretion. LSA-R.S. 15:320. State v. Jones, 233 La. 775, 98 So.2d 185; State v. Collins, 242 La. 704, 138 So.2d 546; 19 LLR 417.
Under the circumstances of this case, fifteen days were not inadequate to prepare a defense to the alleged confession. We do not find that the trial judge abused his discretion in refusing to grant a continuance to counsel for the defendant.
Bill of Exceptions No. 5 is without merit.
Bill of Exceptions No. 6 was taken to the overruling of a motion by counsel for the defendant which requested that all witnesses be placed under the rule and removed from the courtroom during the conducting of the trial; the trial court ruled that several of the Deputy Sheriffs and the Assistant District Attorney were necessary for the conducting of the trial and would be excluded from the rule of sequestration.
Relying on the case of State v. Carter, 206 La. 181, 19 So.2d 41, counsel for the defendant argue that because there were Deputies available for courtroom duty who took no part in the investigation and the District Attorney was present in the courtroom, the action of the trial judge in excluding the Deputies and the Assistant District Attorney from the rule amounted to gross arbitrary abuse of discretion. They contend that defendant was deprived of his right to cross-examine these important witnesses, and that for this reason defendant did not receive a fair trial.
In his per curiam the trial judge states, "The Court found that the Deputies were necessary for the conducting of the trial, and the Court certainly could not exclude the Assistant District Attorney even though he was a witness. The Deputies, who were witnesses, were in and out of the Courtroom and not present all the time. The Courtroom was fairly well crowded and this man was charged with a very serious crime. The Court, therefore, considered that it was necessary that they be present in the
We find that this bill reduces itself to a question of whether the trial judge abused the discretion vested in him under LSA-R.S. 15:371.
In State v. Carter, 206 La. 181, 19 So.2d 41, the defendant was charged with attempting to murder two Deputy Sheriffs. Bills of exceptions were reserved to the court's ruling in refusing to exclude three Deputy Sheriffs and Special Investigators of the District Attorney's Office from the courtroom during the trial. On appeal this Court held that the trial judge abused his discretion; we stated, "We do not think that under the provisions of Article 371 of the Code of Criminal Procedure district judges have the right to make a rule of court that all court officers are exempt from the order of sequestration of witnesses regardless of the importance of the witness' testimony in the case. If this were true, then the trial judges, by making such a rule of court, could, to a great extent, nullify the provisions of the above article and, in certain instances, deny the defendant a fair and impartial trial. We reiterate, the article does not give a judge an absolute and unreviewable discretion but one that must be exercised in such a way as not to deprive the accused of his right to a fair and impartial trial."
On application for rehearing in the Carter case, supra (which was refused), this Court stated in a per curiam, "* * * In deciding questions like the one presented in this case, each case must be decided according to the circumstances there shown to exist. In the case at bar, the district judge did not say, nor did he intimate, that the presence of the three deputies and the investigator in the courtroom during the progress of the trial was necessary in order to assist the district attorney in making out his case. We are not informed as to why the trial judge ruled as he did, and from the record brought up we do not understand why the three deputies and the investigator were permitted to remain in the courtroom during the progress of the trial while all other witnesses, both for the State and for the defense, were put under the rule." See, State v. Ferguson, 240 La. 593, 124 So.2d 558; 366 U.S. 913, 81 S.Ct. 1089, 6 L.Ed.2d 237; State v. Davis, 241 La. 974, 132 So.2d 866.
In State v. Ferguson, supra, we held that the trial judge did not abuse his discretion in permitting a City Detective (a witness for the State) to remain in the courtroom during trial. We found that the per curiam of the trial judge implied that the officer was permitted to remain in the courtroom in order to assist the District Attorney in the presentation of his case.
In State v. Davis, supra, we held that the trial judge did not abuse his discretion in not sequestering expert witnesses during a hearing to determine the present sanity of the defendant therein.
In the instant matter, the trial judge has clearly stated his reasons for permitting the witnesses excluded from the rule to stay in the courtroom during trial; we find no abuse of his discretion.
We have examined the record and find that the defendant was given full opportunity to cross-examine the witnesses who remained in the courtroom; in fact, the record shows that they were cross-examined.
Although counsel for the defendant aver that the defendant was prejudiced by the ruling of the trial judge, defendant has not shown, and we fail to find that he suffered any prejudice. LSA-R.S. 15:557.
Bill of Exceptions No. 6 is without merit.
Bill of Exceptions No. 7 was reserved to the trial court's overruling defendant's objection that the alleged confession was not made voluntarily, and to the trial court's ruling that same was freely and voluntarily made and admissible in evidence.
Counsel for the defendant contend that the alleged statement and/or confession was made under the influence of threats, fear, duress, intimidation, or promise by the Sheriff's Department of Tangipahoa Parish.
In State v. Ferguson, supra, the following correct statements of law were made:
The testimony of record reflects that the defendant was arrested and brought to the Sheriff's Office about midnight, July 26, 1960, or, during the early hours of July 27, 1960. He was thereafter questioned by Thomas I. Sanders, Sheriff of Tangipahoa Parish, concerning the alleged offense. The Sheriff testified that he used no profanity towards the defendant and that he advised him of his rights; that several Deputies performing the usual work of investigation of a crime, such as the instant one, were in and out of the room where the defendant was being questioned. The questioning, he said, was intermittent and usually lasted for a period of thirty minutes; that the examination was finished at about 6:30 in the morning. When pressed, the Sheriff stated that he remembered questioning the defendant about the John O'Brien killing, but that he did not remember any specific questions asked or specific answers given by the defendant.
The defendant testified that the Sheriff "cussed" him all the way through, and that he called him a son-of-a-bitch thirty times. He said that he was permitted to sleep for intervals of fifteen minutes, being put in the front cell, and was then brought back for questioning; that the questioning was for about forty-five minutes or a half hour, and that he was questioned three or four
Mrs. Corinne Watson, Deputy Sheriff and Stenographer of the Tangipahoa Parish Sheriff's Office, testified that at approximately 4:00 P.M., July 27, 1960, she took down in shorthand statements of the defendant made in response to questions propounded by the Assistant District Attorney, Lennie Yokum; that Deputy Sheriff Mervin R. Falcon was also present. Mrs. Watson further testified that the statements were made freely and voluntarily, and that there was no duress, intimidation or force or threats used to obtain the statements; that all of the responses to the questions were the utterances of the defendant. She stated that she later transcribed the statements and gave them to Chief Deputy Simmons, who had them signed. With respect to the introduction of the confession, "I hereby make the following statement of my own free will and accord, having received no threats or promises of any kind * * *," and the closing, "I have made the preceding four and one-half typewritten pages of my own free will and accord * * *," Mrs. Watson testified that the defendant was told that such were to be placed in the confession.
Deputy Sheriff Mervin R. Falcon testified that he was present throughout the entire taking of the statement of the defendant; that it was given freely and voluntarily, and that there were no promises, inducements, threats, or intimidations. He corroborated the testimony of Mrs. Watson, saying that he had examined the statement, and that other than the opening and closing paragraphs it contained the words of the defendant. He said that the defendant was apprised of his rights before he made the statement.
Leonard E. Yokum, Second Assistant District Attorney for the Twenty-First Judicial District, testified that he was notified on the morning of July 27, 1960, that the defendant wanted to make a statement; that he arrived at the courthouse after lunch, and in the office of Deputy Simmons he propounded to the defendant the questions set forth in the alleged confession; that the questions were answered freely and voluntarily, there being no threats or duress, intimidations or any promises or inducements made to McAllister. Mr. Yokum affirmed that Mrs. Watson acted as stenographer and that Mervin Falcon was present.
Deputy Hulon Simmons testified that he received the alleged confession from Mrs. Corinne Watson on August 3, 1960, and that he brought it upstairs and let McAllister read it. He said that the defendant read the confession, making no corrections nor alterations, and then signed it in his presence and in the presence of Deputy Arthur Ricks. He testified:
Deputy Arthur Ricks affirmed the testimony of Deputy Simmons, stating that he signed the confession as a witness with Deputy Simmons.
An examination of the testimony, supra, impels us to conclude that the State has borne its burden of proving that the alleged confession was made freely and voluntarily.
Bill of Exceptions No. 7 is without merit.
Bill of Exceptions No. 8 reads in part as follows:
We have heretofore discussed the written confession in Bill of Exceptions No. 7.
As to the use of the word "statements" in Bill of Exceptions No. 8, it does not appear in the record that the Sheriff or any of his Deputies testified to the content of any oral statement made by the defendant before Mr. Yokum was notified on the morning of July 27, 1960 that defendant wanted to make a statement; nor did the defendant himself testify to the content of any oral statement he made at that time.
Bill of Exceptions No. 8 is without merit.
Bill of Exceptions No. 9 was reserved to the overruling of the objection of the defendant to the introduction of the confession on the grounds that it was not complete and correct, and that is was not freely and voluntarily given.
In Bill of Exceptions No. 7, we have found that the defendant's confession was given freely and voluntarily.
Counsel's attack on the completeness and correctness of the confession is directed to the opening and closing paragraphs of the confession, which we have heretofore discussed in Bill of Exceptions No. 7.
The instant confession contains the entire substance of the accused's statement.
Bill of Exceptions No. 9 is without merit.
Bill of Exceptions No. 10 was reserved to the overruling of defendant's motion for a new trial.
We have examined the motion for a new trial and find that only one of the assignment of errors to the rulings of the trial judge was not covered in our discussions and rulings on Bills of Exceptions Nos. 1 through 9. This assignment avers:
We have carefully read the testimony of record pertaining to the above averment and find that neither the Sheriff nor any Deputy discussed this case with any of the witnesses after it was called for trial. There was no Deputy in the jury room when the jury was deliberating. Chief Deputy Hulon Simmons testified that he assigned duties to the Deputies, and that he gave no thought to assigning Deputies who were not witnesses to work on the trial of this case. Sheriff Sanders testified that to the best of his knowledge he and his office handled this case in an efficient and impartial manner; that he did not think it was of importance that Deputy Sheriffs who were listed as witnesses in this case were the Deputies selected to spend the night with the jury and worked the trial; that to the best of his knowledge this case was held in the same manner as any of the other cases of the same magnitude during his term of office as Sheriff.
LSA-R.S. 15:394 provides that, "From the moment of the acceptance of any juror until the rendition of verdict or the entry of a mistrial, as the case may be, the jurors shall be kept together under the charge of an officer in such a way as to be secluded from all outside communication; * * *." In State v. Davis, 237 La. 577, 111 So.2d 778, we said that the purpose of the section is to keep the jurors from outside influence, the separation contemplated being separation from the public or outside contact.
The defendant has not shown, and we do not find that the manner in which the jury was handled in the instant prosecution was prejudicial to the defendant; there was no showing that any Deputy was present during the deliberations of the jury. The trial judge states in his per curiam, by which we are bound, there being no evidence to the contrary (State v. Brown, 242 La. 384, 136 So.2d 394, State v. Roy, 220 La. 1017, 58 So.2d 323):
Bill of Exceptions No. 10 is without merit.
For the reasons assigned, the conviction and sentence are affirmed.