97 So. 397 | La. | 1923
Defendants appeal from a conviction of murder and sentence of death. Twenty-eight bills ■ of exceptions were retained during the course of the trig.1, but only a few of them have been urged before this court.
Bills Nos. 1 and 2.
Nothing having been said, either -in oral argument or in brief about these bills, we take it that both have been abandoned. In any event, no proof was tendered, and the jury was obtained without exhausting the peremptory challenges of the defendants; hence the ruling must stand.
Bill No. 3.
“The motion for the continuance does not state the facts fully. On the day of the arraignment, the accused being without counsel, the court appointed Gordon W. Goodbee to defend them, and at that time the court informed the defendants themselves that if they desired to employ additional counsel they would have ample time to do so. No request was made for more time or any intimation given the court that more time was desired until the ease was called for trial, although counsel had full knowledge that a jury was being drawn to try this case and that all preparations were being made for the trial; witnesses for state and defense being summoned, etc.
“Mr. Goodbee was appointed by the court and is an experienced lawyer, and in length of practice is the oldest at the bar. He served four years as district attorney of this district, has been an active practitioner in both civil and criminal matters for more than twenty years, and therefore was well qualified to represent the interest of the accused. The accused Rest-er employed Mr. Goodbee after his appointment and paid him a handsome fee. Erom March 9th, on the day of his appointment, to March 19th, on the day the case was assigned for trial, no court was held at Eranklinton, and Mr. Goodbee devoted his entire time in preparation of this ease for trial.. At once after his appointment he was afforded every opportunity for conference with the accused, the members of their families, and their friends and was in constant conference during said time.
“Mr. Eelder, the assistant counsel, visited Eranklinton within two or three days after the case was assigned in conference with Mr. Goodbee and relatives of the accused Rester, and while the court does not say that he was employed earlier than was stated in the motion, the court does say that it construes his statement to simply mean the final payment of the fees which had been agreed upon before was not made until the time stated, that the employment or agreement was made several days prior. Mi*. Eelder lives within forty-five minutes drive of the courthouse, has been active in criminal cases before this court for several years, and is a lawyer with a wide reputation.
“The motion for a continuance was purely for delay, and the defendants were not prejudiced in any way, and no legal rights in their favor were violated by the denial of the motion. The trial of the case convinced the court that the ruling of the court was correct. There was no demand for witnesses, no request for delay for conference, and no legal rights denied the defendants which any continuance could have secured for them.”
We find no basis for disturbing the ruling thus made. State v. Leary, 111 La. 301, 35 South. 559; State v. Wilson, 33 La. Ann. 261.
Bill No. 4.
Neither has anything been said about this bill, and it must therefore have been abandoned. But we see nothing in it to have justified a severance; no sufficient grounds are alleged as to how the defenses would conflict, and the mover could be and was amply protected against any ill effects of the confession by his codefendant by instructions from the court. The bill is without merit.
Bill No. 18.
Bill No. 19.
“As shown by the notes of the stenographer, the jury was retired when this motion was filed; the objection being that the confession or statement was not a confession as to Gideon Rester but only applying to Ms codefendant, John Murphy. The court now refers to the rulings as shown by the stenographer’s notes in this bill as to the fact that Frank Carter, the witness, stated under oath that the defendants Rester and Murphy came to his house the night after the homicide and together in the presence of each other stated to him all the facts relating to the killing and as related by him on the stand, and the court will say that the same facts were related by both defendants when witnesses on the stand in their own behalf. The court will further state that at the time this testimony was admitted to the jury the court charged the jury that if it found any statement testified to by the witnesses as having been made by either of the .defendants out of the presence of the other, such statement could only be considered as testimony against the defendant making such statement.”
Neither the evidence taken out of the presence of the jury nor that offered before them is in the record. We must therefore accept the judge’s statement, and hence find no cause to reverse his ruling.
Bill No. 20.
Bill No. 20 covers an identical condition with respect to a statement or confession alleged to have been made by defendants to the witness Jap Little. The ruling was correct.
Bill No. 21.
All of this took place out of the presence
Bill No. 22.
The record shows that two deputy sheriffs (for whose murder defendants were tried) had been sent to arrest the operators of a still which had been discovered some days before; that these officers had mysteriously disappeared, and posses had been formed and a search made for them without success; that a belief had arisen that they had been murdered, and several persons, including defendants, had been suspected, arrested, and were in jail; and that one of these had informed officers of the state that the two defendants could tell where the missing deputies could be found.
Thereupon the two defendants, apparently with the consent of the sheriff’s force, were taken from the jail to a room in the courthouse, blindfolded, ropes put around their necks, and severe punishment inflicted for the purpose of compelling them to tell where the bodies (it being, by this time, generally accepted -that they had been killed) of the missing officers could be found. Intermittent punishment and grilling of the accused continued iron! about 9 or 10 o’clock Tuesday night until 2 o’clock Wednesday morning, when Rest-er finally confessed, at least in part, and agreed to point out the location of the bodies. Murphy was then brought into Rester’s presence, and, being informed what the latter had said, and Rester reminding him of his promise, the exact nature of which was not revealed at the time, also told a version of the matter; and the two were carried by a posse of from 50 to 100 men to the scene and pointed to the spot where the bodies .were found.
Witness for the state testified that the object of forcing the accused to tell where the bodies were was in order that their families and friends might give them a decent burial. At the scene, when the bodies were taken from the mud into which they had been trampled, responsible citizens addressed the assembled crowd and urged that the law be allowed to take its course. The accused were not harmed, and they were assured that they would be protected and given a fair trial. They were then returned to the jail.
Some time during the day on Thursday following, a minister visited Murphy in the jail and advised him to confess and prepare to save his soul, which he agreed to do. The district attorney having been informed that Murphy wanted to make a statement and had sent for him (by whom, the record does not. show, and which was denied by Mprphy as a witness), obtained a commercial stenographer from an adjacent town, and, at about 8 o’clock Thursday evening, accompanied by a reputable lawyer, who afterwards became associated with the prosecution, the mayor of the town of Franldinton, and two or three other persons, who had been present when the first confessions were forced, if they had not actually participated therein, went into the lobby of the jail and had Murphy brought down. He was asked if he wanted to make a statement. His reply was that he would, and he was requested to do so in order that the stenographer might take it down, which was done.
Thereafter Rester was brought down, and, being informed of Murphy’s course, was also asked if he would make a statement so that it could be taken down, and this he did.
Nothing was said or done in the way of threats, promises, or punishment; and, ac
Considering the circumstances above narrated, and in view of the exclusion of the stenographic report of the confessions, which was unquestionably important and material, not only upon the point as to what was actually said by the accused, but as to such evidences as it might have borne as to the manner and methods used in having it made, we think the court erred in admitting the confessions. We are not to be understood as meaning by this that, if' the report had been produced, it would have made the confessions any the less objectionable; it is simply mentioned as a circumstance tending to show the insufficiency of the state’s proof in attempting to establish that they were voluntarily made.
It is true that, in his testimony taken out of the presence of the jury, Murphy stated that he had promised the minister to “come clean”; that he had done so; that what he had said at the jail was true;' and in one place in his testimony the following appears:
“Q. When I went to the jail, didn’t you tell me all about this thing?
“A. Yes, sir.
“Q. Did you do it willingly?
“A. Yes, sir.”
We do not feel that we can sanction a proceeding like the one attempted in this case. The trial court should, at the time the bills are presented, or as soon thereafter as possible, at least before the transcript is completed and filed in this court, write its per curiams to all bills. While we are sure no judge would willingly make an incorrect statement, yet we are all human, and it is not impossible that memory might fail us.
Bills Nos. 23 and 24.
Regardless of its correctness or incorrectness, we think accused were entitled to have it. It would have been for the defense to determine as to whether they would use it, and for the jury to decide as to its qffect, together with all the other evidence. Especially should it have been produced, since no one else was present at the time or produced as witnesses save those for the state. Counsel for the state should not have been permitted to say whether it was correct or not, but it should have been produced, and that question determined by the court and the jury, if it had gone to them. It was certainly very relevant upon the nature and circumstances of the confessions. State v. Guagliardo, 146 La. 949, 84 South. 216.
Bill No. 25.
Such practice is unknown to our law, and the ruling refusing the instruction was correct.
Bill No. 26.
Bill No. 27:
Bill No. 28.
This bill covers the refusal to give the following special charges:
No. 1. “The court instructs the jury that each and every juror should vote his own convictions, and not the convictions of some other juror or jurors, and if there is one man on the panel who has a reasonable doubt of the guilt of the defendants, arising either from the evidence or a lack of evidence, he should by all means never vote for conviction while he-has such doubt.”
No. 7. “The court instructs the jury that one who only assists in hiding the bodies, or concealing the crime, or in aiding the principal in any other way, after the crime of homicide is completed, is only an accessory to the main crime, and cannot be convicted of either murder or manslaughter, under an indictment for murder.”
No. 8. “The court instructs the jury that before you can convict the defendant Gideon Hester, you must believe, solely from the evidence and beyond all reasonable doubt, that he had some part or connection with the killing before it had been completed, and this is true, even though his guilt is more probable, from the evidence, than his innocence. One who has had nothing to do with the homicide except to hide the body and conceal the crime is, under the law, not guilty of the main crime, but is only guilty of what is termed in law ‘an accessory after the fact’ which is a different crime and must be tried under a separate indictment.”
No. 9. “The court instructs the jury that it is your sworn duty, if possible, to harmonize and reconcile all proven facts with the theory of innocence, and if you are able to do this then guilt is not established to that degree of certainty required by law, and you should promptly acquit, rather than convict. The statement of Gideon Rester that he only helped bury the bodies after they were dead, and then concealed the homicide, is not a confession of guilt under the indictment, but is in fact and truth a denial of guilt, and he being corroborated therein, if in fact he is corroborated, you must acquit him unless there is other evidence which convinces you beyond all reasonable doubt that he had some other part in the killing.”
, No. 10. “The court instructs the jury that evidence is always insufficient to convict upon where, taking all facts as proven which the evidence tends to prove, the defendant’s innocence may yet be reasonably possible; for it is the exclusion of every reasonable possibility of innocence which establishes guilt to that degree of certainty required by law. Therefore, even though you believe, beyond all reasonable doubt, strictly on the evidence, that the defendant Gideon Rester, was distilling whisky at the scene of the killing, and that he was present at the time of the killing, that he assisted in the burial of the bodies, and that he kept the crime secret until he was induced to disclose it under torture, or that he disclosed it for other reasons, yet you must find him not guilty unless you further believe, not from conjecture but strictly from evidence, and that beyond every reasonable doubt, that he (Gideon Hester) had some connection with the homicide, prior to or during its commission.”
No. 11. “The court instructs the jury that there is no presumption of guilt upon proof of the killing of a human being where all of the attendant circumstances are testified to by eyewitnesses to the killing, but that the question as to who committed the crime is one to be determined by you from a consideration of the evidence introduced; therefore, before you can convict Gideon Rester of any charge under the indictment, the evidence introduced must make*208 it plain, certain, and clear, beyond every reasonable doubt, that Gideon Rester did something more in connection with the killing than to hide the bodies and conceal the crime, after the killing had been done.”
Ño. 12. “The court instructs the jury that if from the evidence it is -uncertain as to whether the defendant, Gideon Rester, merely assisted in the burial of the bodies and concealing the crime, or whether he took some other part therein, then the evidence does not amount to proof of any charge included in the indictment, and you must acquit the defendant Gideon Rester.”
No. 13. “The court instructs the jury that if, after the ease is closed, you reasonably and sincerely feel that you would .rather have stronger, more, or better evidence, as to the part Gideon Rester had in the killing before you vole for conviction as to him, then, and in that event, the guilt of the said Gideon Rester is not established to that degree of certainty required by law, and you should find him not guilty.”
Por the reasons assigned, the conviction and sentence are set aside, and this case is remanded, to be proceeded with according to law and the views herein expressed.