43 So. 2d 585 | La. | 1949
[1] The defendant, Dale Smith Simpson, who was tried for murder, convicted, and sentenced to be electrocuted, is appealing from the conviction and sentence.
[2] During the course of the trial the defendant reserved fifty-three bills of exception. First we will take up the bills which have been briefed and argued on this appeal, discussing them singly or in groups as the dictates of clarity and convenience direct.
[3] Bill of Exception No. 1 was reserved to the court's refusal to grant a continuance of file pleadings. On September 22, 1948, when counsel for the defendant were appointed, they were informed that they had until October 4, 1948, to withdraw the plea of not guilty previously entered and file further pleadings. On October 4, 1948, the time was extended to October 6, 1948, and on October 6, 1948, it was again extended to October 7, 1948. The ruling complained of was made on October 7. In the motion for a continuance counsel for the defendant asserted their belief that they would soon be able to locate witnesses and evidence attesting to the insanity of the accused, both present and as of the date of the alleged crime, and requested the court to postpone the arraignment of the defendant for a reasonable length of time during which they hoped to be able to produce these witnesses and with their support seek the appointment of a lunacy commission. The motion was accompanied by several exhibits in the form of letters and telegrams from various relatives of the defendant.
[4] The motion and exhibits show no more than a hope that evidence of insanity would ever be produced, and, as a matter of fact, no such evidence was produced during the course of the trial. In his per curiam the trial judge states that he had anticipated this development and had taken pains to observe the defendant and question those who were in constant contact with defendant, regarding his sanity, and had concluded that the defendant was absolutely normal. The motion was directed to the sound discretion of the trial judge and we see no abuse of that discretion in the judge's refusal to grant the motion. Article
[5] Bill of Exception No. 2 complains of the ruling of the trial judge on defendant's motion for a bill of particulars. The only requested information which the bill of particulars did not furnish was that requested in paragraph III, (b) and (c) of defendant's motion, as follows:
[6] "b. Whether or not the statement or alleged confession of your defendant or the statement or alleged confession of his co-defendant was placed before the grand jury for its consideration, and
[7] "c. Such other memoranda and data, both written and verbal that went before the grand jury, that were connected directly or indirectly with the alleged statements or confessions of your defendant and his co-defendant."
[8] The proper function of a bill of particulars is to inform the accused in greater detail of the nature of the crime of which he is charged. Articles 235 and 288 of the Code of Criminal Procedure. State v. Davis,
[9] Bill of Exception No. 3 is taken in connection with defendant's prayer for over. The language of the prayer for over is so vague and general that it is difficult to tell exactly what counsel expected the court to order produced. But from counsel's argument in support of this and other connected bills we take it that he entertains the hope that this court will extend the ruling laid down in State v. Dorsey,
[10] "It is not our intention to overrule the prior jurisprudence of this State, and particularly the various cases cited by counsel for the State, in each of which defendant was denied pre-trial inspection of written confessions of co-defendants, written statements of witnesses, or police reports in the hands of a sheriff, police department, or district attorney, and we do not overrule these cases."
[11] In State v. Mattio,
[12] Bills of Exceptions Numbers 11, 19, 20, 21, 22, 23, and 25 will be taken up now, as they are interrelated with the bill just discussed. These bills represent the consistent objections of counsel to any reference by direct testimony or otherwise to any statements attributed to Simpson by Detective Tardo, who was an eye witness to the crime, other than the one statement which was disclosed in answer to the prayer for over. (In the answer to the prayer for over it was disclosed that Detective Tardo in his police report had quoted Simpson as saying "Keep driving as if nothing happened. I just shot Nick." This was properly included in the answer, in view of the judge's ruling, as being in the nature of an admission.) The sole argument in support of these bills is that all statements of the accused should have been disclosed in the answer to the prayer for over and that not having been disclosed they must be excluded from the case. Our ruling on Bill of Exception No. 3 disposes of this argument. None of the statements referred to were in the nature of a confession, and there was no reason for their being disclosed in answer to the prayer for oyer.
[13] Bills of Exception Numbers 4 and 6 were reserved to the court's overruling counsel's motion to have various witnesses summoned in order to show that the defendant was held incommunicado from the time of his arrest until he was supposed to have confessed; thereby showing, we take it, that the grand jury received other than legal evidence. Counsel's avowed purpose in seeking this testimony was to perpetuate it in connection with the motion for a bill of particulars. As we have said, the motion for a bill of particulars was properly denied and these bills must fall with it.
[14] Bill of Exception No. 5 was reserved to the trial judge's ruling on the motion to quash, and presents three questions for decision. First, was the trial judge correct in refusing to hold a hearing on the nature and legality of the evidence which went before the grand jury? This court has answered the question in the affirmative. State v. Dallao,
[15] Bill of Exception No. 7 complains of the court's refusal to appoint a lunacy commission. The appointment of a lunacy commission rests in the discretion of the trial judge and we find no abuse of that discretion here. The exhibits introduced with this motion totally fail to disclose any evidence of insanity on the part of the accused. The ruling complained of is correct. State v. Bessar,
[16] Bill of Exception No. 9 is taken to the court's directing Dr. C. Grenes Cole, Parish Coroner, to observe the defendant and investigate his sanity. In his per curiam to Bill of Exception No. 7 the court makes it plain that his appointment of Dr. Cole was not in any way regarded by him as a substitute for a lunacy commission. The court still did not believe there was any basis for a lunacy commission but simply appointed Dr. Cole in an effort to still the clamoring of the defense for an examination by a psychiatrist. We fail to see how this could have prejudiced the rights of the defendant.
[17] Bill of Exception No. 10 is reserved to the overruling of a motion for a continuance which was made on October 27, 1948, the morning the case went to trial. This bill presents the same question for review as was presented by Bill of Exception No. 1 and our ruling is the same. We might note here that this case did not go to trial until thirty-five days after the appointment of counsel to represent the defendant and counsel were informed of the trial date when they were appointed. This allowed ample time for the preparation of the defense.
[18] Bill of Exception No. 12 was reserved when the district attorney in delivering his opening statement read the definition of murder as defined in Section 1 of Article 30 of the Criminal Code. The district attorney took this means of explaining to the jury the nature of the charge as he was required to do under Article
[19] Bill of Exception No. 15 was reserved to testimony given by a witness for the state on direct examination as follows:
[20] "Q. I understand you requested to return to New Orleans with Chief Scheuring?
[21] "A. Yes, and I talked to two men that they had in custody and Simpson told me he had killed a man."
[22] Counsel for the defendant objected and asked for a mistrial and the court ruled as follows:
[23] "By the Court: Court instructs jury to disregard statement and Court disregards request for mistrial."
[24] Counsel reserved this bill. It is conceded that the answer was not solicited by the district attorney and it is not suggested that the district attorney is in any way responsible for its having been given. Under these circumstances the ruling of the trial judge was proper. State v. Goodwin,
[25] When the state offered Simpson's written confession in evidence the defense objected on the ground that the proper predicate had not been laid. The objection was overruled and counsel for the defense reserved Bill of Exception No. 16. The defendant surrendered on the morning of September 7, 1948, and was taken to the Donaldsonville jail. There he with his companion, Miller, was delivered to the New Orleans police at about noon of the same day and brought back to police headquarters in New Orleans. They were kept there from the time that they arrived until they gave their confessions on the afternoon of September 8, 1948, and signed them on the afternoon of September 9, 1948. The state introduced several police officers, including Chief of Detective Scheuring, also two assistant district attorneys, a newspaper man, and a stenographer who, among them, accounted for every minute of defendant's time from the moment he was delivered to the New Orleans police until the confession was given and signed. They all testified that to their knowledge the defendant was not mistreated or offered any rewards or inducements and never showed any signs of mistreatment. The defendant himself admits that he was very well treated except that just before he gave the confession he was cursed, beaten in the stomach and over the kidneys until he agreed to confess. He pointed out some of the men who he said participated in the beating and were present when he made the confession.
[26] Counsel for the defense in his brief makes much over the fact that the defendant was held incommunicado up until the time that he confessed. This is simply not borne out by the testimony. The only people who wanted to see him were newspaper men and members of the police force. The newspaper men were allowed to see him on the morning of the eighth. The curious policemen were kept away as a precautionary measure because the defendant was accused of having killed one of their brother officers. The defendant stated that he did not care to see a lawyer. Again counsel complains that defendant was not permitted to see a certain police officer. The officer was not on duty when the defendant made the request. When the officer returned to duty he went to see the defendant. The defendant did not complain to this officer of having been beaten nor did he complain to any one else.
[27] It is the law of our state that before introducing a confession in evidence it is incumbent upon the state to prove that the confession was freely and voluntarily made. State v. Robinson,
[28] Bills of Exception Numbers 36, 37 and 38 were reserved to the trial judge's refusal to give certain requested special charges to the jury. The charges are rather lengthy and will not be quoted for that reason. The judge's ruling was correct. Insofar as the requested charges suggested that the jury should find the defendant guilty of manslaughter rather than murder if they found that he killed the deceased while resisting an illegal arrest, the charge was incorrect. We have no such provision in our law. Whether an illegal arrest would constitute provocation sufficient to reduce the crime from murder to manslaughter would be a question of fact upon which the judge properly refrained from commenting. Insofar as the requested charges referred to the subject of provocation as a mitigating circumstance and to justifiable homicide, they were thoroughly and correctly covered in the court's charge to the jury.
[29] Bill of Exception Number 44 arises out of the court's refusal to grant special charge No. 18 presented by counsel for the defense, which requested the trial court to instruct the jury that they might return any one of the following responsive verdicts:
[30] 1. Guilty as charged, which carries the death penalty.
[31] 2. Or Guilty without capital punishment.
[32] 3. Guilty of manslaughter.
[33] 4. Guilty of negligent homicide.
[34] 5. Guilty of attempted murder.
[35] 6. Guilty of attempted negligent homicide.
[36] 7. Not guilty because of insanity.
[37] 8. Guilty of attempted manslaughter.
[38] 9. Not guilty.
[39] We note at the outset that counsel for the defense included in this bill a rather lengthy reference to the unconstitutionality of Act No.
[40] Article 390 of the Code of Criminal Procedure reads as follows:
[41] "The prosecution and the defense have each the right to present to the court, before the argument has begun, any written charge or charges, and request that the same be given. Except as otherwise provided herein, 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." A thorough search of the transcript of the testimony in this case has failed to reveal a single instance in which the defendant even hinted at insanity as a defense. His entire defense was that the killing was accidental. Obviously, therefore, Item 7 of the requested charge was not pertinent to the issue of the case and under the plain and inescapable implication of Article 390, supra, the judge was not required to give the charge.
[42] However, this being a case in which the death sentence has been imposed, we have considered the remaining items of the requested charge and counsel's arguments in support of their correctness. This crime was committed after the effective date of Act No.
[43] "An Act
[44] "To amend and re-enact Article
[45] "Section 1. Be it enacted by the Legislature of Louisiana, That Article
[46] "Article 386. Whenever the indictment sets out an offense including other offenses of less magnitude or grade the judge shall charge the jury the law applicable to all offenses of which the accused could be found guilty under the indictment. The only responsive verdicts which may be rendered, and upon which the judge shall charge the jury, where the indictment charges the following offenses are:
[47] "Murder.
[48] "Guilty as charged.
[49] "Guilty without capital punishment.
[50] "Guilty of manslaughter.
[51] "Not guilty. * * *"
[52] If the act is constitutional the defendant has no complaint, for the verdicts prescribed as being responsive to murder were given in the court's general charge to the jury. Defendant strenuously urges that the act is unconstitutional. His entire argument is founded upon a belief that Act No.
[53] In State v. Rodosta the question arose whether the legislature could, by adopting the Code of Criminal Procedure, change the substantive law of the state. Preparatory to the drafting and adopting of the Code of Criminal Procedure, the legislature, possibly apprehensive as to the validity of the adoption of an entire code by a single act in a view of the general prohibitions of Sections 16 and 18 of Article III of the Constitution, initiated a constitutional amendment. When adopted, it in effect provided for the drafting and adoption of the Code of Criminal Procedure. In Rodosta's Case the court held that the legislature by adopting the Code of Criminal Procedure could not change the substantive law because no such authority had been conferred by the constitutional amendment. The principal of the Rodosta Case has been reiterated on numerous occasions, all dealing with an original article of the Code of Criminal Procedure, and all citing State v. Rodosta as the original authority. State v. Capaci,
[54] Immediately after the judge delivered his general charge to the jury, counsel for the defense reserved Bill of Exception No. 50 as follows: "I object to that part of the General Charge with respect to waiver of extradition and reserve a bill of exception, making the general charge part of the bill."
[55] This bill presents nothing for review for in reserving the bill counsel failed to specify in what respect he considered the charge to be erroneous. Article 391, Code of Criminal Procedure. State v. Covington,
[56] On December 22, 1948, when the defendant was called for sentence, the defense presented a motion for a continuance of sentence, a motion for a new trial and a motion in arrest of judgment, all of which were overruled and which are the subject of Bills of Exception Numbers, 53, 51 and 52, respectively.
[57] The motion for a continuance of sentence is no more than a reiteration of the request for a lunacy commission. In support of this motion counsel offered as "newly discovered evidence" a letter from defendant's mother which disclosed that she was suffering from "shingles." The record does not indicate how this could have even the remotest connection with the sanity of the accused. The motion was properly denied for the reasons given in our discussion of Bills of Exception Numbers 1 and 7.
[58] The motion for a new trial was properly overruled, being a summation of the errors previously complained of and disposed of in our treatment of other bills.
[59] The only new point raised in the motion in arrest of judgment is whether the defendant was deprived of a fair and impartial trial by reason of the jury's being in continuous session from 10:00 a.m. on the morning of the 29th of October until 4:40 a.m. on the morning of the 30th of October when they returned the verdict. There is nothing in the record to show that the jury were fatigued to a point where they could not intelligently consider the matter before them. The ruling was correct.
[60] The twenty-five bills which have not been mentioned individually were not briefed or argued on appeal and we deem them to be abandoned. However, we have reviewed them and find that they have no merit.
[61] The conviction and sentence are affirmed.
[62] HAMITER, J., does not take part.