The defendants Edgar Labat and Clifton Alton Poret, charged in a bill of indictment with the crime of aggravated rape denounced by Article 42 of the Louisiana Criminal Code, R.S. 14:42, were tried, adjudged guilty, and sentenced to death. From their convictions and sentences they have appealed.
In the early hours of the morning of November 12, 1950, while the prosecuting witness and her escort, Robert Penedo, both white persons, were walking along a street in New Orleans, they were assaulted by the two defendants, both of whom were Negroes. The dеfendant Labat after threatening to shoot Penedo robbed him, and at the same time the defendant Poret dragged the prosecuting witness into an alley and after tearing her clothing from her body proceeded, with the assistance of the other defendant who had in the meantime joined him, to rape her. The defendant Labat was arrested in New Orleans shortly after the commission of the crime. Despite diligent efforts the police were unable to find the defendant Poret because he had become a fugitivе from justice. He was found almost two years after the commission of the crime in a Tennessee penitentiary, where he was serving a term to which he had been sentenced on August 9, 1951, about nine months after the rape of the prosecuting witness in this case.
In the proceedings in the lower court the defendant Poret through his counsel reserved and perfected seven bills of exception, and the defendant Labat through his counsel reserved and perfected 27 bills of exception. Of these bills, Bill No. 5 perfected by сounsel for the defendant Poret has been abandoned, and Bills Nos. 17, 20, and 23 reserved by counsel for Labat have likewise been abandoned. Although counsel for each defendant reserved separate bills which were separately numbered, we shall consider these bills in accordance with the provisions of Article 501 of the Code of Criminal Procedure that, whenever a bill of exception has been reserved in any criminal proceeding in which more than one defendant is on trial, it shall be presumed, unless thе contrary clearly appears, that the bill has been reserved by all of the defendants on trial. In discussing these bills, however, we shall designate them by refer *209 ence to the defendant on whose behalf they were actually reserved.
Labat Bill of Exception No. 1.
This bill was reserved to the refusal by the trial judge to grant to the defendant Labat his prayer for oyer of a statement or confession made by him. The State answered the defendant’s prayer for oyer by admitting that it had in its possession a written statement or confession but alleging that it did not intend to оffer this statement or confession in evidence. The trial judge informs us in his per curiam that his ruling was based on the State’s written answer that it did not intend to offer the confession in evidence and „did not offer this confession in evidence.
The ruling is correct. Since the State did not rely on or offer in evidence the written statement or confession, this statement in its hands was no more than a written statement of a witness or a police report in the hands of the district attorney to be used by him in the preparation of the case. If the Statе had intended to use the confession, the defendant would have been entitled to a pre-trial inspection, but, since it did not, this argument amounts to nothing more than an effort to have the court extend the doctrine of the case of State v. Dorsey,
Labat Bill of Exception No. 2.
This bill was reserved to the refusal of the trial judge to order the State to furnish all the partiсulars sought by this defendant in his motion for a bill of particulars. In answer to this motion the State informed the accused of the time, the day, and the place of the offense charged, but refused to inform him whether the State would contend that there existed a conspiracy between the two defendants and, if so, what part this defendant was alleged to have played or performed, or whether the State would contend that this defendant was a principal, or whether he actually committed the crime of rape in fаct, and whether there was an actual penetration of the prosecuting witness by this defendant, or whether the State would contend that he merely aided or assisted his co-defendant in the commission of the alleged rape.
Defendant contends that the refusal of the trial judge to order the State to furnish the information sought denied to him the right to be informed in writing of the nature and cause of the accusation against him. There is no merit in this contention. The indictment itself informs him of the nature and cause of the accusatiоn against him, and it was sufficient for this purpose. See State v. Michel,
Labat Bills of Exception Nos. 3, 4, 5, and 6; Poret Bill of Exception No. 1.
These bills result from the refusal of the trial judge to quash the indictment against these defendants. The motions to quash are based on the ground that persons of the Negro race because of their race were discriminated against and unlawfully and systematically excluded from the general vеnire, from the grand jury panel involved, and from the grand jury which indicted these two Negroes, and that they were thereby deprived of due process and the equal protection of the laws guaranteed by the state and federal Constitutions. To these motions the State objected and filed a demurrer on the ground that the motions in behalf of these defendants were not timely filed under the provisions of Article 202 of the Code of Criminal Procedure of this state. This objection or demurrer was sustained by the trial judge.
Article 202 of the Code of Criminal Procedure has been interpreted and construed by this court to mean that any objection to the manner of selecting or drawing a grand jury or to any defect or irregularity in the empanelling and selection of a grand jury must be urged and filed before the expiration of three judicial days after the grand jury term expires or before entering upon the trial of the case if it is begun sooner. State v. Wilson,
The grand jury which indicted these defendants was empanelled on September 5, 1950, and the indictment was returned on Decеmber 11 of that year. The grand jury term ended, and this'grand jury was discharged, on March 5, 1951. Both defendants filed their first motions to quash on November 7,1952, approximately a year and eight months after the expiration of the term of the grand jury which indicted them.
The defendant Labat, who was arrested and imprisoned shortly after the commission of the crime, was represented by able, learned, and experienced counsel appointed by the court to represent him on January 5, 1951. Thus this defendant had counsel for *213 a period of more than two months prior to March 8, 1951, the last day on which under the article any objections to the irregularity in the empanelling of the grand jury, etc., could be filed. In this court Labat’s present counsel give no explanations or reasons why the motion was not timely filed, and accordingly under the provisions of the article the trial judge was correct in refusing to consider his motion.
Counsel for Labat contend that the article is unconstitutional, for what reason we are somewhat at a loss to ascertain from a reading of their brief. By this we mean that we cannot ascertain whether counsel contеnd that the •article denies the defendant equal protection of the law or that the article deprives him of due process. If their contention is that it denies to him the equal protection of the law, this contention has been fully answered by this court in the case of State v. Wilson, supra, and is without merit.
In brief counsel argue that the article, in effect, deprives a person charged with a crime of the right to be indicted by a fair and impartial jury and the right to be tried by such a jury, and by this we presume they mean that it deprives the dеfendant of due process of law. The article does not deprive the accused of a trial by a fair and impartial jury. It merely fixes a period of time in which any objection to the manner of selecting or drawing a jury must be urged. It does not deny to a defendant an opportunity to present any objection or plea that he may have to the empanelling of the grand jury, but provides merely that such obj ection or plea must be filed within a certain period of time. It does not deprive him of his life, liberty, or prоperty without an opportunity to be heard in accordance with the regularly established rules of practice, pleading, and procedure.
The police were unable to arrest the defendant Poret because immediately after the commission of the crime he became a fugitive from justice. He was finally found in. Tennessee, where he was serving a term in a penitentiary to which he had been sentenced on August 9, 1951, about nine months after the date of the commission of the crime in Louisiana. Counsel for Poret under these facts argues that it would have been impossible for him to file his motion to quash on or before March 8, 1951, or within three judicial days after the expiration of the term of the grand jury which indicted him, and that for this reason Article 202 of the Code when applied to him is unconstitutional because under these facts it deprives him of the equal protection of the law and of due process as guaranteed by the Constitution of the United States.
It is not true that the defendant Poret was denied an opportunity to file his motiоn timely. He was indicted on December 11, 1950, and had until March 8, 1951, a period of almost three months, in which to file his motion to quash. His own actions to avoid prosecution caused him not to avail himself of his right to challenge the jury. *215 During the time he could have filed the motion he was a fugitive by his own choice and will. If we concede that his flight made it impossible for him to file the motion timely, he himself brought about the situation which made it impossible. To our minds it would be improper to hold that the prescriptive period provided in the statute is applicable to an accused held under arrest within the jurisdiction of the court but is not applicable to an accused who of his own will and accord has absconded to avoid prosecution. Such a holding would be tantamount to rewarding the absconding person for his flight. Moreover, the article provides for a prescriptive period which runs against the accused, and he cannot by any acts of his own extend the time provided for the filing of the motion.
Defendant cites and relies on the case of Carter v. Texas,
We might observe that under the quoted Texas article no person indicted would ever have an opportunity after indictment to challenge the array of the grand jury which indicted him. This is not true under our article, and, as we have hereinabove pointed out, the defendant in the instant case was nоt denied an opportunity to file his motion to quash and have it considered by the court, but his failure to avail himself of this opportunity was caused by his flight. Under the circumstances of this case the case cited and relied on is not pertinent or controlling.
We conclude therefore that under the. facts of the instant case application of Article 202 to this defendant does not deprive him of the equal protection of the law and *217 due process as guaranteed by the Constitutions of this state and the United States.
Labat Bill of Exception No. 7.
Thе court denied a motion for a severance, and this bill was reserved. At the hearing of this motion no showing was made that the defenses of these defendants were conflicting or antagonistic, and it is well settled in the jurisprudence of this state that the granting of a severance is not a matter of right but lies within the sound discretion of the trial judge, which will not be interfered with unless exercised arbitrarily and prejudicially. Article 316, Code of Criminal Procedure; State v. Gournet,
Labat Bills of Exception Nos. 8, 9, 10, 11, 12, 13, and 19; Poret Bill of Exception No. 3.
All of these bills wеre reserved to the overruling of objections to questions asked the prosecuting witness, with the exception of Bill No. 19 which concerned a question asked Detective Arthur Jordan. In the majority of these bills the objection was made that the question was leading, in. others no reason was given for the objection, and in still others the objection was that the question was repetitious. Typical examples of the questions are these:
(1) “Miss - [the prosecuting witness], do you know whether there was a light on the corner of Thalia аnd South Tonti Streets?” Upon objection the court instructed counsel for the State to re-frame the question, and the following question was then asked: “Miss -, what was the lighting condition that night or early morning with respect to Thalia and South Tonti?”
(2) “Did you meet Robert Penedo that night?”
The trial judge in his per curiams to these bills informs us that some of the questions propounded were not leading; that others were merely preliminary or preparatory questions and, if they were leading, were not objectionable; that others were necessary to explain and clarify the faсts which the State was attempting to prove.
We have carefully considered all of the questions and the objections made to them, and find no merit in any of these bills. It is well settled that considerable latitude must, be left to the trial judge in ruling on the form of questions to witnesses; that a conviction will not be reversed because the trial court allowed leading questions except where a showing is made, that there was a clear abuse of such discretion calculated to have prejudiced the accused’s rights, and that, while counsel should not be permitted to lead a witness,.
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a verdict will not be disturbed on that ground when the subject was relevant unless there was a clear abuse of discretion. State v. Allemand,
Labat Bills of Exception Nos. 14 and 18.
These bills were reserved to the trial judge’s overruling of objections to questions asked Robert Penedo, the companion of the prosecuting witness, and a police officer, Robert Barrere. Penedo was asked whether the prosecuting witness said anything, and he answered that “She said it was terrible, thаt’s all I remember her saying”. The police officer was asked whether the prosecuting witness made a complaint to him, and he replied that her answer was that “she had been attacked in an alleyway taken there by two Negroes”. The objections in both instances were that the answers of the witnesses would call for hearsay testimony. The trial judge overruled these objections on the ground that the evidence in both instances was admissible as part of the res gestae and further, as to the officer’s testimony, to show a complaint made by the prosecuting witness to the officer. The declarations of the prosecuting witness were made to these two witnesses immediately or within a very short time after she had been raped and while she was still crying and hysterical, and near or at the place where the rape had occurred, under the following facts and circumstances :
While the prosecuting witness was being attacked in the alley, her companion ran from the scene and summoned the police. He armed himself and returned within a few moments, and at about the same time Officer Barrere and other police arrived’ and gave chase to, and fired at, someone fleeing from the vicinity of the crime. One of the officers and Penedo called the name of the prosecuting witness several times, and upon hearing a woman’s voice they went in the direction from which the voice came and met the prosecuting witness.
Res gestae are events speaking for themselves through the instinctive and spontaneous words or acts of the participants; and exclamations made by the par
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ties during or immediately after the commission of the crime and in the excitement of the occasion are generally regarded as part of the res gestae. Article 447, Code of Criminal Procedure; State v. Molisse,
Moreover, a person to whom a complaint has been made by the victim of a rape may testify as to the particulars of the complaint mаde by the prosecutrix against the accused immediately after, or contemporaneously with, the commission of the crime, not as proof of the truth of the statement made but as part of the res gestae. See Marr’s Criminal Jurisprudence, sec. 127, pp. 224, 225. Under the facts and circumstances the rulings of the trial judge were correct.
Labat Bill of Exception No. 15; Poret Bill of Exception No. 2.
Upon his arrest the defendant Labat was taken to the police station and was there identified from a group of several individuals by Robert Penedo, the escort of the prosecuting witness at the time she was raped. During the trial Penedo was called to testify as to what occurred at the police station and to show that he had identified Labat. For this purpose he was asked the question: “Suppose you say what you did?” To this he answered:
“I identified Labat right away and after I identified him the police took Labat and myself in a room and asked me if that was the man and I said yes and asked Labat if he knew me. He admitted I was the man — ”
Counsel for thе defendants requested a mistrial on the ground that the part of the witness’s answer that “He admitted I was the man” was evidence of a confession made by the defendant Labat which was inadmissible because the assistant district attorney had not stated to the jury in his opening statement that he expected to prove any statement or confession made by Labat to anyone or to show that Labat had answered questions asked him by anyone. This request for a mistrial was denied by the judge, but the judge immediately instructed the jury to disregard the remark of the witness, and, when a bill was reserved, the judge again instructed the jury to disregard the remark.
That part of the witness’s answer of which the defendants complain was not responsive to the question asked him but was volunteered by the witness himself, as the State asked the witness only to state what he did. There is no merit in this bill, for, as stated in State v. Rugero,
• “Defendant’s complaint is not well founded. The unsolicited statement of the witness, to which objection was made, furnishes -no ground for setting aside the verdict. The trial for a criminal offense can not be defeated or nullified by the act of a witness in making a statement which he shquld, not make and for which the prosecution is not responsible. State v. Rugero,
Moreover, it must be presumed that the jury followed the instructions of the trial judge. State v. Brannon,
Labat Bill of Exception No. 16; Poret Bill of Exception No. 4.
While the State’s witness Robert Penedo was on the stand, it was ascertained that shortly after the crime he had made a written statement to the police, which was at the time of the trial in the custody of the State but was not offered in evidence in the case. Counsel for the defendant Poret moved thé court to order the State to produce the written statement for the purpose of possible impeachment of the witness on cross-examination and to test his credibility. The court denied the request, and this bill was reserved.
It is well settled in the jurisprudence of this stаte that the defense is not entitled to any written statement of a witness in the hands of the district attorney or the police department. State v. Mattio,
Labat Bill of Exception No. 21; Poret Bill of Exception No. 6.
This bill was reserved in connection with certain remarks made by the assistant district attorney in his closing argument to the jury. The district attorney informed the jury that the defendant Labat had been shown a number of photographs and suggested to the jury that they determine for themselves the circumstances under which Poret's picture may have been identified.
The trial judge in his per curiam informs us that counsel for the State in his closing argument was not going out of the record but was merely drawing his conclusions and deductions from the evidence which had been adduced during the trial. . Out of an abundance of caution, however, the judge instructed the jury at that time that argu
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ment by counsel for either side was not to be considered as evidence in the case. The ruling of the trial judge was correct, for under Article 382 of the Code of Criminal Procedure counsel have the right to draw from the evidence any conclusions which to them may seem fit. In State v. Alexander,
“It is a well-settled principle that as a matter of law, the prosecuting officer has the right to press upon the jury any view of the case arising out of the evidence — the Supreme Court is bound to credit jurors with common intelligence, conscientiousness, and sense of duty. To justify setting aside a verdict of a jury, approved by the trial judge, on the ground of intemperate or improper remarks made by a District Attorney, we would have to be thoroughly convinced that the jury was influenced by such remarks, and also, that the remarks contributed to the verdict found. State v. Johnson & Butler,48 La.Ann. 87 ,19 So. 213 ; State v. Hamilton,124 La. 132 ,49 So. 1004 , 18 Ann.Cas. 981; State v. Davis,178 La. 203 ,151 So. 78 ; and State v. Tucker,204 La. 463 ,15 So.2d 854 . * * *” See also State v. Dowdy,217 La. 773 , 811,47 So.2d 496 .
Labat Bills of Exception Nos. 24, 25, 26, and 27.
These bills were reserved to the refusal of the trial judge to give certain requested special charges which are des-
ignated as Special Charges Nos. 1, 2, 5, and 8. These requested charges deal with the function of a bill of particulars, the difference between identity and identification, and responsive verdicts to the crime charged in the indictment. Counsel cite no law in support of their аrgument that these charges should have been given, and we know of none. There is no merit in any of these bills, and there is no necessity for us to quote the requested charges. The trial judge in his per curiams to these bills shows that he considered that these charges, respectively, were not pertinent, required explanation, were covered by the general charge, and were not a correct statement of the law. In refusing to give these special charges he was entirely correct, for Article 390 of the Code of Criminal Procedure provides that “ * * * the judge must give every such requested charge that is wholly correct and wholly pertinent, unless the matter contained in such charge have been already given, or unless such charge require qualification, limitation or explanation.”
Labat Bill of Exception No. 22; Poret Bill of Exception No. 7.
These bills were reserved to the overruling by the trial judge of defendants’ motions for a new trial. The grounds upon which these motions are based are all matters which we have already considered and discussed in connection with the other bills reserved, except that in the mo *227 tion filed by Labat he contends that there was no evidence whatsoever upon which to prove the charge or any lesser one contained in the indictment. There was evidence adduced upon which a conviction could be based, and this court cannot pass upon the sufficiency of the evidence, which is a matter within the exclusive province of the trial judge and jury. It is only where there is no evidence at all that a question of law arises for our consideration.
For the reasons assigned the convictions and sentences are affirmed.