By bill of indictment filed September 15, 1967, Lee Perry Pratt was jointly charged with Claude Alexander with the crime of aggravated rape upon a young woman on September 4, 1967—the record reveals that the victim was sixteen years of age at the time the alleged crime was committed. LSA-R.S. 14:42. A severance was granted on November 10, 1967, after the hearing of preliminary motions.
BILL OF EXCEPTIONS NO. 1.
Bill of Exceptions No. 1 was reserved when the trial judge denied defense counsel's request for additional information in answer to an application for a bill of particulars.
In application for a bill of particulars, defendant requested the following information:
Counsel for the defendant contended that the answer was insufficient. Citing Article 480 of the Louisiana Code of Criminal Procedure and the Official Revision Comment thereunder, particularly sub-section (d), the trial court ruled that the District Attorney had sufficiently answered the inquiries requested.
Counsel for the defendant contends in this Court that disjunctive crimes must be charged in the conjunctive for the reason that a defendant in a criminal prosecution is entitled to know what accusation is relied upon by the prosecution, and if the offense is charged disjunctively or alternatively, the precise accusation against the defendant is left uncertain. Counsel further contends that prejudicial error was committed by the refusal of the trial court to order the State to specify in what manner the defendant was alleged to have committed the crime of which he was accused in order that he might know what accusation was relied upon by the prosecution. He argues that disjunctive or alternative charges are not authorized by Official Revision Comment (c) under Article 480 of the Code of Criminal Procedure.
Article 480 of the Code of Criminal Procedure recites:
We find that the phrase "and/or" in the above answer to the bill of particulars did not prevent the defendant from knowing what accusation against him was relied upon by the prosecution. A reading of the answer discloses that it plainly alleges that the victim resisted the rape to
The case of City of Shreveport v. Bryson, 212 La. 534, 33 So.2d 60, discussed in the Official Revision Comment (c) to Article 480 of the Code of Criminal Procedure, is not apposite. Therein, this Court held that a defendant was improperly charged when the affidavit filed against her alleged that she was driving under the influence of intoxicating liquor or drugs; disjunctive or alternative pleading was not permitted. It is understandable that drugs and liquor are two different substances, and that in order for an accused to adequately prepare her defense, she must know which of the substances allegedly influenced her.
It is well settled that the ruling of the trial judge denying an accused data sought in a motion for a bill of particulars will not be disturbed in the absence of a clear showing that the judge abused his discretion to the prejudice of the accused. State v. Andrus, 250 La. 765, 199 So.2d 867, 876. See, State v. Wright, 254 La. 521, 225 So.2d 201; Article 484, Louisiana Code of Criminal Procedure.
We find no abuse of discretion by the trial judge herein.
Bill of Exceptions No. 1 is without merit.
BILL OF EXCEPTIONS NO. 2.
Bill of Exceptions No. 2 was reserved when the trial court overruled defendant's motion to quash the indictment filed against him for the following reasons:
Counsel for the defendant urges herein that Bill of Exceptions No. 2 contains three propositions, each of which is sufficient to quash the indictment: (1) There were no Negroes on the Jury Commission which selected the Grand Jury which indicted the defendant; (2) There were no Negroes on the Grand Jury which indicted the defendant; and (3) There were no women on the Jury Commission, Grand Jury, or Petit Jury.
Oliver J. LeBlanc, Clerk of Court, Lafayette Parish, Lafayette, Louisiana,
Despite the fact that the Jury Commission included no Negroes in its composition, the evidence discloses no prejudicial exclusion. Under the circumstances, we find that the following from State v. Barksdale, 247 La. 198, 170 So.2d 374 (Cert. denied), 382 U.S. 921, 86 S.Ct. 297, 15 L.Ed.2d 236, is controlling:
The testimony attached to the instant bill discloses that the jury venire herein was selected from a cross-section of the Parish of Lafayette, and that names placed in the venire were chosen from various lists, such as the Telephone Directory, the City Directory, and the voting list of the Registrar of Voters. No conscious effort was made to include or exclude members of any race. Questionnaires were sent to prospective jurors under a system of selecting one out of eight names. Answers included a designation of race, but the testimony affirms that race was not considered when names gathered from the questionnaires were placed in the jury venire box. Pertinent testimony of Mr. LeBlanc is as follows:
The fact that the Grand Jury included no members of the Negro race is, in our opinion, a matter of coincidence and not purposeful exclusion. As stated supra, the composition of the general venire was indiscriminate; the names of the Grand Jury venire were drawn from the general venire. It follows that race was not a factor in selection. See, Article 411, Louisiana Code of Criminal Procedure.
Article 402 of the Code of Criminal Procedure provides, "A woman shall not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service." In State v. Comeaux, 252 La. 481, 211 So.2d 620, we stated the reason for the exclusion of women from mandatory jury service as follows:
In Hoyt v. State of Florida, supra, the United States Supreme Court considered a Florida statute similar to Article 402, supra. It held the statute constitutional and concluded:
We conclude that defendant herein suffered no deprivation of his constitutional rights by the omission of women from the Jury Commission, Grand Jury, and Petit Jury. No women volunteered for jury service; the following testimony of Mr. LeBlanc affirms this fact:
"* * *
Defendant had the burden of proving unreasonable race and class discrimination under the assertions and contentions averred in this bill of exceptions.
Bill of Exceptions No. 2 is without merit.
BILLS OF EXCEPTIONS NOS. 3 AND 4.
Bills of Exceptions Nos. 3 and 4 were reserved when the trial judge maintained the State's challenge for cause of two prospective jurors.
These two prospective jurors on their voir dire stated in essence that they did not believe in capital punishment and would not bring in a verdict assessing such a penalty even if they found the defendant guilty of the crime charged. They said that they had no doubts that they could determine the guilt or innocence of the accused, but they emphatically said that they would not vote for capital punishment.
We find that the trial judge was correct in excusing these prospective jurors; he did not violate the ruling of Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), which recites:
In Witherspoon, supra, the defendant was sentenced to death; the defendant herein has received life imprisonment.
Bills of Exceptions Nos. 3 and 4 are without merit.
BILLS OF EXCEPTIONS NOS. 8, 9, 10, 11, 12 AND 13.
Bills of Exceptions Nos. 8, 9 and 10 were reserved to the trial court's overruling defense counsel's objection to the in-court identification of the defendant by the companion of the victim.
Bill of Exceptions No. 11 was reserved to the trial court's permitting the State to offer in evidence its Exhibit "A" (a picture of Claude Alexander) and its Exhibits "C" and "D" (pictures of the victim's companion).
Bills of Exceptions Nos. 12 and 13 were reserved when the trial court permitted the victim to testify with respect to statements she had given at a preliminary examination and thereafter make an in-court identification of the defendant.
The testimony attached to the instant bills reflects that after the occurrence of the crime the victim did not describe her attackers; she was taken to a hospital for treatment. Her companion gave a brief description of the attackers to the police. Thereafter, the victim was present at a police line-up at which Claude Alexander
The trial judge did not allow identification of the defendant by the pre-trial line-up to go to the jury. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. He permitted in-court identification to be considered by the jury, and both the victim and her companion positively identified defendant as one of her attackers.
Counsel for the defendant contends that there was no identification prior to the illegal line-up, and that, after the tainted pre-trial confrontation, it is impossible for anyone to state whether or not the identification and observations of the witnesses are independent of and disassociated with the tainted pre-trial confrontation.
We have carefully read the testimony of record and find that it shows that the victim's companion saw her attackers in the park and had a mental picture of them sufficient to allow recognition at a future date. The testimony also reflects that the companion's in-court identification of the defendant was independent of that made before the Grand Jury. The testimony of the victim is to the effect that the faces of her attackers were mentally impressed upon her. Her in-court identification of the defendant was positive and went to the jury for its evaluation.
The exhibits and testimony with respect to the preliminary examination were connected with the in-court identification of the defendant; they were therefore relevant evidence.
A deliberate study of the instant bills convinces us that the trial judge's rulings were correct. His Per Curiam to Bill of Exceptions No. 8 recites:
Bills of Exceptions Nos. 8, 9, 10, 11, 12 and 13 are without merit.
BILL OF EXCEPTIONS NO. 15.
Bill of Exceptions No. 15 was reserved to the trial court's overruling defendant's motion for a new trial.
The motion for a new trial presents nothing new for our consideration, except the contention that the State did not prove that the victim was not the wife of the defendant. This same contention is raised in Bill of Exceptions No. 16 and will therein be discussed and found to be without merit.
Bill of Exceptions No. 15 is without merit.
BILL OF EXCEPTIONS NO. 16.
Bill of Exceptions No. 16 was reserved when the trial court overruled defendant's motion in arrest of judgment.
The motion in arrest of judgment recites:
The record shows affirmatively that there is no marital connection between the victim and the defendant. The victim's uncontradicted testimony is to the effect that she did not know the defendant, and that she saw him for the first time in her life the night the crime was committed. The uncontradicted testimony of other witnesses is also to the effect that the defendant was a stranger to the victim.
Bill of Exceptions No. 16 is without merit.
For the reasons assigned, the conviction and sentence are affirmed.