91 So. 664 | La. | 1922
Joseph Eini, Andrea Lamantia, Eoy Leona, Joseph Giglio, Joseph Bocchio, and Natale Deamore were convicted of the murder of Dallas Calmes, and from
As section 3 of Act 135 of 1898 prohibits a person who holds any state, parish, or municipal office from being a jury commissioner, and as section 23 of Act 136 of 1898, as amended by Act 97 of 1900, under which Kentwood is governed, designates the clerk as an officer, and as the nature of his duties makes him one, the question therefore presents itself: Has he qualified as clerk? We are of the opinion that he has not. Article 161 of the Constitution of 1913 requires all officers, before entering upon the discharge of the duties of their respective offices, to take the oath prescribed by that Constitution. This Broyles hás not done. The taking of the oath is essential in law to an acceptance of the office. A mere acting as such officer is not sufficient, although the person so acting, as is the case here, may have been elected or appointed thereto. State v. Glaude et al., 148 La. 353, 86 South. 895. Hence the motion to quash the indictment is not.well grounded.
On the trial the state called as a witness Robert Thompson, and sought to elicit from him a statement made in his presence by Natale Deamore, one of the defendants. All of the defendants objected to this statement on the ground that it was not freely and voluntarily made. The court overruled the objection, according to the recital of the bill, on the ground that the statement was voluntarily made. The court, in its per curiam, also says that it was not a confession, but was more in the nature of a self-serving declaration.
The facts surrounding the making of the statement are as follows: Deamore was arrested on the morning of the murder, and was taken to Albany. At Albany he was delivered to several deputy sheriffs, who had him get into an automobile for the purpose of delivering him to the sheriff. At that time Deamore was handcuffed, and' there was a rope around one of his legs. From the evidence of the deputies, when Deamore reached the automobile, he acted as if he did not care to get in it, and turned aside, at the same time cursing. Hoggatt, one of the deputies, then hit him over the eye with a pistol, which caused a wound in Deamore’s forehead of approximately an inch and a half in length, and which caused the blood to flow rather freely. At this time he was hit or shoved by one Tom McCarroll. Deamore’s evidence is to the effect that he had no intention of not getting into the automobile, but that he had difficulty in doing so, because of the fact that he was handcuffed and his legs were tied. When he got into the automobile, he fell against a deputy, who shoved him to the other side of the seat. The deputies then proceeded on their journey to deliver Deamore to the sheriff. After driving some three miles and a half, they overtook him. Deamore expressed a desire to talk to the sheriff, and the sheriff questioned him. The exact time of this questioning, in so far as it relates to the statement objected to and made by Deamore, does not clearly appear. We gather, however, that it was within an hour prior to the making of that statement. During the questioning, the sher
“They got him [Deamore] to come with them to help. They told him it was only 50 miles. He said he did not want to come. He said, ‘This is what they got me into, the dirty crooks,’ and he said, ‘Me go with you and help you catch them;’ ‘you ought to go up there and see where they killed a man.’ ”
While such misconduct on the part of officers may put a prisoner in fear, and thereby bring about the making of a confession,
Deamore, and some of the other defendants, those apparently under arrest at the time, were promptly taken to New Orleans for safe-keeping, where Deamore on the morning following his statement to Pulliam made a statement to Mr. Craven, an assistant district attorney of the parish of Orleans, which statement, according to the latter’s evidence, is as follows:
“He told me that on Friday, May 6th, five men, whom he termed ‘five crooks,’ came to his place of business in an automobile and told him that they were going out.into the country, up into the country, and that they wanted him to go along as a mechanic. He said the men knew him. He said that he had been a scissors grinder around New Orleans, and had finally become the owner of a garage, and that he was a good mechanic, and that they wanted him to go along as a mechanic. He says he drove up the road to a place belonging to a man by the name of Peter Leotta, and that .Deamore asked him to show them the road to Independence. Leotta, he said, told them that he would go along with them and show them the road, and that he had a little boy working for some one near Independence, at the place of a man by the name of Giamalva, and he wanted to take him along with them when they came back, and that they agreeH to do this. He said when, he got to Giamalva’s he went in the pasture and put the car up, and that there was some woods back of the pasture, and he turned the car around back of the pasture; that some time during the day, while at Giamalva’s, some of them took him out in the woods and threatened him with a gun and told him that if he said anything about this that they would kill him; that later on they went to Giamalva’s and asked Giamalva to lend them a horse and wagon, and that Giamalva told them he didn’t have a horse and wagon, or didn’t care to lend them one, and that they went across the way in the vicinity and asked a man by the name of Pisciotta for the loan of a horse and wagon; that Pisciotta lent them a horse and wagon, and that the men drove into Independence to purchase gasoline and came back to Giamalva’s house later on; that night, I think he told me it was 11 o’clock, the men left Giamalva’s house and started towards Independence; that he went along with them; that on the way to Independence, between Independence and Giamalva’s house, Deamore told me that the men ordered him to get out of the automobile alongside of the railroad track; that he got out of the automobile alongside of the railroad track, where he found four guns, and took two of them with him; that he was walking towards the station when he was arrested. He said that he didn’t know that the men were going on there on any criminal business, and did not find out till later that they were criminals. I asked him if there was any other gun or guns in the automobile. He said ‘Yes.’ I said,/Did you see them?’ He says, T hit them with my foot while riding in the automobile, and they told me to watch out for those guns.’ I asked him, ‘Was anything else in the automobile?’ He says that there was a package in the automobile. That’s about all I can remember just now.”
This statement was objected to on the ground that it was not freely and voluntarily made, but that the making of it was induced by violence, threats, and the moving of Deamore from one police station to another.
Craven testified that he did not seek the interview in which the above statement was. made, but that it was asked for by Deamore, who made the request that it be private. The evidence of this witness is also to the effect that, in so far as his knowledge extends, no threats were made, nor duress used,.
Deamore, as a witness in his own behalf, testified that he was taken to the morgue, and while there Craven pointed out to him two men who were there lying dead, and whom Craven said he had killed, and that, unless he (Deamore) confessed, that he would treat him likewise. Two of his codefendants who accompanied him also testified as to threats against them on that occasion and as to other mistreatment.
While Craven did not recall whether Deamore had been taken to the morgue, yet he felt that he had been. He recalled having taken two of the other defendants. Two detectives who were with Craven when the visit was made both testified that Deamore was taken there with the others. The evidence of all three is to the effect that no threats were made against any of the defendants; that the purpose in taking them there was to identify two Italians who had been killed the night before.
On the afternoon of the same day that Deamore made the above statement to Craven, in private, the latter had Giglio, Leona, Btini, and Lamantia brought into a room where he and Deamore were; and, at Craven’s request, Deamore repeated to them that statement. Bini remained silent. Giglio said, referring to Deamore: “He is trying to get out of it himself.” Leona said: “He is trying to get us in it and get himself out of it.” Lamantia sprang at Deamore, but was prevented from striking him.
When the statements made by Deamore to Craven in private, and in the presence of the defendants mentioned, were offered in evidence, the defendants Joseph Bini, Andrea Lamantia, Boy Leona, Joseph Bocchio,'and Joseph Giglio objected to them on the ground that what was stated out of their presence was not binding on them nor evidence against them, and that as to Deamore himself, the statements were made under duress and after threats and violence; and the defendants also asked the court to then and there charge the jury that the statements, if any were made, could not be considered substantive evidence!, but \only evidence that Deamore had made them. The court overruled these objections.
The remaining defendants, however, asked that the statements be received as to them, not as substantive evidence, but as mere statements made by Deamore, if made by him at all. The court overruled this, and, as appears from the stenographic notes made at the time, charged the jury as follows:
“At the present time I will let the matter 'stand as charged in the previous charge at the request of the defendants. I have only- charged*175 the jury that the testimony relating- to statements made by Deamore to Mr. Craven will apply only against Deamore, and not against the other defendants, who were not present at the time. The court will take care of that under general instructions.” (Italics ours.)
As the court in the above ruling refers to previous instructions, it may be well to observe that, when the witness Thompson was on the stand, giving his evidence as to the statement made by Deamore to Pulliam, a similar request was made by the defense, but the state objected. The court then reserved the point for the general charge. When Pulliam was on the stand testifying to the same statement, at the request of the defendants, the statement was confined as to its effect against Deamore, and instructions were given to the jury not to consider it against the other defendants. That instruction, it may be noted, conflicts with that given to the jury and set forth in the bill under consideration. When Wing was'on the stand, giving his evidence not only as to statements made by Bocchio, another of the defendants, but also as to the statements made by Deamore, in the presence of Craven and several of the defendants, and which prompted the requested instruction now under consideration, the court was then asked to receive them as against Bocchio only. The court, however, instructed the jury as follows:
"Any statement made by any one of the defendants out of the presence of the other defendants is only to be considered by you gentlemen, against the particular party making the statement. If it was made in the presence of any other accused, you cam give it whatever efcct you think it should have." (Italics ours.)
Erom the above we conclude that the statements made by Deamore went to the jury as substantive evidence against those of the defendants, who ■‘were present w¡hen they were made. This, in so far as we are able to see, was the only purpose that the state had in offering them, for they were a mere repetition of what Deamore only a few hours before had stated to Craven in private, though we conclude that, if the state saw proper, it had the right to show, in so far as Deamore was concerned, that he made the same statement twice, and this we have held above, but this .must be understood with the qualification, as we shall proceed to sliow, that when such evidence is being offered, the rights of the other accused must be carefully guarded.
“But the accused, at the time the statements were made, was under arrest, and it is well settled that the exception by which uncontradicted statements are taken out of the rule excluding hearsay, does not extend to cases where the accused was under arrest when the statements. were made. State v. Diskin, 34 Ann. 919; State v. Estoups, 39 Ann. 906.”
In so far as respects the others, who were present, we see nothing in their replies or conduct that shows an admission of even a single fact; and nothing that would justify the admission of the statements against them, especially as evidence of the truth of Deamore’s statement implicating them.
It is true that the defendants asked that, if the statements were not excluded because not made voluntarily by Deamore, then that they be received as against the defendants, not as substantive evidence, but only as evidence that Deamore had made such statements: If the court did not feel justified in excluding the evidence altogether, as relates to the defendants other than Deamore, against whom it was admissible, it should have limited the effect of it, as requested by those defendants. As the court did not do so at the time nor in its general charge, it
After the jury had been impaneled, and before any evidence had been offered, the defendants requested the judge to give a written charge to the jury. When the time came for him to deliver his charge, he did so, partly in writing, partly by reading marked passages from books, and partly orally. The entire charge was taken down in shorthand by a competent 'stenographer. The stenographer, at the instance of the defendants, had been sworn to take the evidence produced'and the matter forming the bases of bills of exception throughout the trial. The defendants, at the conclusion of the charge, excepted to it, on the ground that it was not given entirely in writing.
The judge, in his per curiam, states that he had a general charge in writing, which he had used from the time he ascended the bench; that he used this, and also read from a work on criminal law; and he further says:
“I delivered a small portion of my charge to the jury orally, always cautioning the stenographer to be sure and get it correctly, and in a slow manner, so that he could, and which he did. It was impossible for me otherwise to give a complete charge, as I could not anticipate the arguments of counsel as to law quoted by them, and to know in advance just what was needed in the way of special explanations. Had the stenographer, who was employed by defendants, not been present, taking the charge in toto. I would have stopped, and, in the presence of counsel and the jury, have reduced the explanations and special charges given orally to writing before delivery; but having the stenographer, who is highly qualified and very accurate, present, I saw no necessity to delay proceedings when the effect was the same.”
The judge then concludes by saying that the stenographic report of the charge is per-feet; that, had he written it, it would not have been different from what it is.
“In all cases appealable to the Supreme Court, it shall be the duty of the judge to deliver his charge to the jury in writing, if the counsel of either party require the same.”
The above statute is mandatory, and the refusal of the judge to comply with it by not giving a written charge, when requested, is fatal. State v. Porter, 35 La. Ann. 535; State v. Gilmore, 26 La. Ann. 599; State v. Swayze, 30 La. Ann. 1323.
Therefore there was fatal error in the manner in which the charge was delivered in this ease, unless the fact that the court had it taken down by a stenographer while it was being delivered brought it within the statute, or unless the defendants waived their right to a written charge.
In other jurisdictions in which the judge is or may be required to deliver a written charge the weight of authority seems to be that a charge orally delivered and steno-graphically taken is not within the requirements of the statute. Lesueur v. State, 176 Ind. 448, 95 N. E. 239; Littell v. State, 133 Ind. 577, 33 N. E. 417; Burnett v. State, 72 Ark. 398, 81 S. W. 382; Brindle v. State, 17 Ga. App. 741, 88 S. E. 460; State v. Harding, 81 Iowa, 599, 47 N. W. 877; State v. Bennington, 44 Kan. 583, 25 Pac. 91.
The case of State v. Outs, 30 La. Ann. 1155, is the only case in our jurisprudence, within our knowledge, that might be construed as militating against the above view. In that case the court held that the judge had complied with the request for a written charge, though, after delivering it, he made oral observations to the jury. No objection was made to the oral observations at the time, nor was any error pointed out in them. The court ruled that the judge had complied with the demand, “and, if there were any objection to his saying anything to the jury beyond what he had written, it should have been made then.” It does not appear from the opinion, when the exception was taken; and therefore, as the opinion is vague in this respect, it is difficult to say whether the court meant to hold that an objection made at the conclusion of the charge was timely or not. An inspection of the record, however, shows that the charge was given to the jury partly orally and partly in writing, and that, after it was so given, no exception was taken thereto, and not until the bill was presented. Hence that case, neither from the face of the opinion, because of its vagueness, in that particular, nor from an inspection of the record, to clarify it, can be considered as precedent against the view that, when the exception is taken at the conclusion of the charge and before the jury retires, it is timely taken.
We therefore conclude that this bill was well taken and ought to be maintained. The judge had the right to read to the jury marked passages from the book mentioned by him, but not to charge partly orally.
“Gentlemen, a man may be either actually or constructively present at the commission of a crime. A person who- is actually pres'ent is a person who is near enough to give aid or assistance in the actual commission "of the crime, or to aid in the escape of the party perpetrating the crime." A man is constructively present who, though not actually at the pl^ce itself or near enough to give aid, has done some act in the furtherance of the common design. A man may not be actually present, but he may be constructively present if he has done anything to put the design in such shape that without it the crime could not have been committed.”
The defendants excepted to this charge on the ground that the coui-t’s instruction as to constructive presence was erroneous.
The indictment in this case charges a conspiracy. In the case of State v. Poynier et al., 36 La. Ann. 572, the indictment also charged a conspiracy. That case involved the larceny of cotton. The judge there, in charging the jury, said:
“If the evidence establishes a combination on the part of the accused and others to steal the 32 bales of cotton, and that Poynier, with the view of assisting the actual perpetrators of the larceny, kept out of the way, he was guilty as principal.”
This court maintained the instruction as correct, and, in passing on the case, among other things, said:
“One need not be either an eyewitness of the criminal act or within hearing of it to make him a principal. If he had knowledge of it, and watches so as to assist in any manner, if is enough. (Doan v. State, 26 Ind. 495). Or if he do any act in execution of the common design, or to aid those who are immediately engaged to escape (Wixon v. People, Id.). Each person consenting to the commission of an offense, and doing any one act which is an ingredient in the crime, or immediately connected with or leading to its commission, is a principal. D. S. v. Wilson, Baldw. (U. S.) 78, 102 (Fed. Cas. No. 16,730); U. S. v. Libby, 1 Woodb. & M. (U. S.) 221 (Fed. Cas. No. 15, 597).”
We therefore conclude that, in so far as relates to constructive presence, the charge in this case is correct.
“Among the defenses in this case is what is known in law as the plea of alibi; that is, that the accused at the time of the commission of the crime of which they are charged were at another place, and wholly disconnected with it. Such defense, if established to the satisfaction of the jury, is legitimate and sufficient. Evidence offered to sustain the defense of alibi is in its nature rebuttal to evidence introduced by the prosecution. In judging the facts involved in this issue the jury must consider all evidence, as well as that brought by the accused as that brought by the state. The burden of proof rests on the state to establish that the defendants committed the crime with which they are here charged, and the state must sustain its burden on every material issue involved in the ease.”
“Such defense, if established to the satisfaction of the jury, is legitimate and sufficient.”
This sentence casts the burden of proof on the defendants. However, we think that the effects of the error were removed by the charge in the same paragraph, where it is said:
“The burden of proof rests on the state to establish that the defendants committed the crime with which they are here charged.”
This instruction immediately follows as to how the jury should consider the evidence in support of the alibi, and therefore we conclude that the effects of the error were removed.
“Whenever it happens that there may be conflicting testimony, the jury may consider whether or not any witness has any interest in the result of the trial.”
The defendants excepted to this on the ground that it was equivalent to instructing the jury that they might take into consideration the interest that the accused had in the result of the trial, and cite in support of their contention State v. King, 135 La. 117, 64 South. 1007 ; State v. Smith, 135 La. 427, 65 South. 598 ; State v. Hataway, 144 La. 142, 80 South. 227.
The charge in those cases was objectionable, because the judge singled out the accused, by instructing the jury that they might consider the interest they had in the result of the trial. No such objection is applicable here. The court in this case did not single out the accused in giving the instruction, but the instruction applied alike to all witnesses without singling out one, whether he was one of the accused or not, and therefore was not improper.
The remaining bills of exception relate to the offering of evidence in rebuttal, the selection of the jury, and incidents surrounding the trial. It would serve no useful purpose to pass on them.
For the reasons assigned, it is ordered, adjudged and decreed that the verdict of the jury and the sentence based thereon be, and the same are, hereby annulled, avoided, and set aside, and that this case be remanded to the lower court to be proceeded with according to law and the views herein expressed.