STATE of Louisiana v. Leroy HAMILTON
No. 57522
Supreme Court of Louisiana
June 21, 1976
334 So. 2d 383
DENNIS, Justice.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
DENNIS, Justice.
Defendant Leroy Hamilton was charged by bill of information with attempted first degree murder, a violation of
Prior to trial, defendant moved to quash the bill of information on the ground that it was improper in form. Aftеr a hearing the motion was denied, and defendant assigns this ruling as error.
The bill of information charges that defendant “* * * did attempt to commit first degree murder of Officer Larry Michenhime, Baton Rouge City Poliсe Officer who at the time of the offense was engaged in the lawful performance of his dutiеs.” Defendant contends that the indictment is defective in that it does not follow the short form provided in
Among the abbreviated indictment forms authorized by Article 465 are the following:
“7. Attempt—A.B. attempted to_____ (commit theft of one rifle—state property subject of the theft; rob C.D.; or murder C.D.; as the case may be). (Emphasis added.)
“31. First Degree Murder—A.B. committed first degree murder of C.D.”
The bill of indictment at issue here effectively combined the elements of these two forms to charge attempted first degree murder. The addition of descriptive faсts to the indictment did not affect its compliance with the statutory form. The last paragraph оf Article 465 pertinently provides:
“The indictment, in addition to the necessary averments of the aрpropriate specific form hereinbefore set forth, may also include a statemеnt of additional facts pertaining to the offense charged. If this is done it shall not affect the sufficiency of the specific indictment form authorized by this article.”
An allegation of specific intent is not required in the short form indictment. The basic function of the specific indictment forms is to inform thе accused of the crime charged, reserving a recital of the details of the offense for the bill of particulars.
This assignment is without merit.
ASSIGNMENT OF ERROR NO. 2
Defendant unsuccessfully moved for a mistrial when the State commented in its closing argument оn defendant‘s failure to call his nephew, who was present at the scene of the crime, аs a witness in his behalf. The motion was improperly denied, defendant argues, because the witness was equally available to the State and to the defendant.
The governing principle has been expounded by 2 Wigmore on Evidence, § 288 (3d ed. 1940), as follows:
“It is commonly said that no inference is allowable where the person in question is equally available to both parties; particularly where he is actually in court; though there seems to be no disposition to accept such a limitation absolutely оr to enforce it strictly. Yet the more logical view is that the failure to produce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances. To prohibit the inference entirely is to reduce to an arbitrary rule of uniformity that which really depends on the varying significance of facts which cannot be so measured.”
Although the witness was equally accessible to both the State and the accused for service of process, the failure of the State to place him on the stand cannot, under the circumstances, prevent it frоm arguing that the jury should draw an inference
Furthermore, we find no errors which are discovеrable by a mere inspection of the pleadings and proceedings.
Accordingly, defendant‘s conviction and sentence are affirmed.
AFFIRMED.