State v. Montgomery

• Decision Date: 17 January 1966
• Docket Number: No. 47895,47895
• Citation: 248 La. 713,181 So.2d 756
• Parties: STATE of Louisiana v. Henry MONTGOMERY.
• Court: Louisiana Supreme Court

Page 756

181 So.2d 756

248 La. 713

STATE of Louisiana v. Henry MONTGOMERY.

No. 47895.

Supreme Court of Louisiana.

Jan. 17, 1966.

Murphy W. Bell, Johnnie A. Jones, Baton Rouge, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for appellee.

HAMLIN, Justice.

Defendant appeals from his conviction of and sentence to death for the crime of murder (LSA-R.S. 14:30) of Charles H. Hurt, a Deputy Sheriff for the Parish of East Baton Rouge.

Twenty-eight Bills of Exceptions were reserved during the course of trial.

In this Court, counsel for the defendant have not briefed the Bills of Exceptions reserved but have submitted the following five specifications of errors directed to the conviction of defendant:

'I. The conviction below violates constitutional guarantee of due process of law in the following respects:

'a) The accused was trial and convicted in an atmosphere of intense passion for the victim * * * 'that counsel, jury, and judge were swept to the fatal end by an irrestible wave of public passion, and that the State Court (s) failed to correct the wrong.' Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543.

'b) That the chief prosecutor for the State 'appeared at certain stages of this prosecution as a prosecutor and appeared later as a prosecuting witness (with a personal interest). The two roles are incompatible.' State of Louisiana v. B. Elton Cox and Arthur Jelks, 246 La. 748, 167 So.2d 352.

'c) That R.S. 15:267 requires that two disinterested physicians may be appointed by the Court to examine the defendant with regard to his present mental condition; that the presiding judge appointed the Coroner and Deputy Coroner of East Baton Rouge Parish over objection of counsel * * *; that later these two physicians appeared as important State witnesses against the accused, claiming that during the course of their examination the accused 'confessed' which confession was neither revealed to defense counsel or at the sanity hearing, but appeared for the first time at the trial on the merits.

'II. The accused was denied right of counsel at a crucial stage of the proceedings against him. After the investigation had 'focused' on the defendant, a 17 year old Negro youth of low mentality, the rule of Danny Escobedo v. Illinois (378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977) * * *, decided June 22, 1964, applied, especially in view of the fact that the District Attorney had begun representing the State of Louisiana by eliciting a confession, inter alia, prior to appointment of counsel.

'III. The alleged confessions were coerced.

'IV. The grand and petiti juries were not impartially selected.

'V. The Judge's comment on the evidence was fatally defective.'

We shall discuss only those Bills of Exceptions necessary to our disposition of this matter, which we shall hereinafter remand to the district court for a new trial.

Bills of Exceptions Nos. 4 and 5 (combined) were reserved to the rulings of the trial judge denying defendant's motion for change of venue and his motion to quash the Bill of Indictment. These bills were directed to the issue of prejudice with particular regard to the indictment which originally recited, 'That Henry Montgomery alias 'Wolf Man' * * *' Defendant averred that prejudice existed in the public mind and was caused by the unfair bringing of the indictment by the East Baton Rouge Parish Grand Jury under the false alias dictus of Henry (Wolfman) Montgomery and the widespread dissemination of said alias to the general public of the Parish by the newspapers, radio, and television outlets.

On January 10, 1964, on motion of the District Attorney, the indictment was amended by the Clerk of Court by physically striking and deleting the words 'alias Wolfman' therefrom. On the same day, a motion to strike was filed by counsel for the defendant.

Defendant's motion for a change of venue and his motion to quash the indictment were heard on January 20, 1964. Testimony of representatives of local newspapers, TV Stations, and radio stations was adduced. These witnesses in great part admitted using the alias or sobriquet 'Wolfman,' but they all stated that such use was not to bring about the conviction of the defendant. The motions were overruled.

We find no legal defects in the instant indictment, nor do we find that counsel has alleged its insufficiency. Striking of the sobriquet was favorable to the defendant, and such verbiage having been removed, no reason existed for quashing the indictment. Even if the use of the alias had any prejudicial effect upon the defendant, such prejudice would not have been reason for quashing the indictment after its amendment. Therefore, we find that the indictment is valid.

There is no necessity for our discussing the issue of change of venue. In his motion for change of venue, defendant averred that because of his indictment under the false alias dictus of Henry (Wolfman) Montgomery he did not think he could get a fair and impartial trial in the Parish of East Baton Rouge. He further averred that his constitutional rights would be violated by trial in that parish.

The trial judge heard evidence on defendant's averments and denied his motion, holding that defendant had not proved that his constitutional rights protecting him from prejudice would be violated because of the then stricken sobriquet. Infra, we shall find that what defendant should have been granted, under the facts existing several days before trial commenced, was a continuance. At present we are unable to pass upon whether or not he will be entitled to a change of venue in the future.

Bill of Exceptions No. 6 was reserved when the trial court denied defendant's motion for continuance and/or change of venue. The motion recited in part:

'That the accused, HENRY MONTGOMERY, is a member of the Negro race and a citizen of the State of Louisiana and of the United States of America, but avers that he has reason to believe, and so believing alleges that he will be unable to get a fair trial in the Parish of East Baton Rouge due to the involvement of certain prominent state, parochial and municipal officials in the memorialization of the victim in this case, and Before the trial thereof; that these actions and efforts, though commendable in themselves, have been unfortunately 'timed' to coincide with the trial of your mover, Henry Montgomery, thus causing great prejudice to your mover, and will deprive him of his life without due process of law, unless the relief prayed for will be granted by this Court. * * *

'That mover makes this application as soon as he discovered the existence of such prejudice, and that this application is made, not for the purpose of delaying the trial of your defendant, but for the purpose of securing an impartial trial, WHEREFORE MOVER PRAYS:

'I. That the District Attorney for East Baton Rouge Parish be ordered to show cause upon a day and at an hour certain, why the motion for continuance or alternatively a change of venue should not be granted.'

Trial was set for Monday, January 27, 1964; the motion for continuance and/or change of venue was filed on January 22, 1964, after the following news item appeared in the STATE-TIMES, Baton Rouge, Louisiana, on the afternoon of January 22, 1964:

'Resolution Cites Charles Hurt at Committee Meet

'The presentation of a resolution in memory of her husband to Mrs. Charles Hurt was a feature of the second meeting of the steering committee of the Charles Hurt Fund this morning.

'The group, which includes backer of the fund and representatives of the communications media, met in the state capitol office of fund chairman, Wade O. Martin, Jr., Louisiana Secretary of State.

'The resolution commemorating Hurt, deputy sheriff who was killed in the line of duty Nov. 13, was passed by the National Conference of Police Associations and was presented to Mrs. Hurt by Sheriff Bryan Clemmons.

'During the business portion of the meeting, the sheriff was elected vice-chairman. Frank Trimble, chief deputy, was placed in charge of handling funds.

'Contributions to the Charles Hurt Fund, which has been established for his widow and three children, should be sent to the sheriff's office in the parish courthouse.

'Martin noted that there had been a substantial increase in donations and that the fund now totals $3,426. He said pledges and contributions had come from many persons who had commented they hadn't realized the fund was lagging.

'Martin also said that some professional services and materials and supplies had also been donated, so that the committee had not had to make any purchases so far.

'The chairman read a letter from a 7 1/2-year-old boy, who sent to the fund $5 which he had received as a Christmas present.

'The committee will send a letter asking assistance in the drive to school principals, businessmen and civic and social organizations in the parish.

'It was also reported that the City-Parish Council would be asked to proclaim Monday, Jan. 27, as Charles Hurt Day, with a possible state-wide proclamation also in view.'

On January 22, 1964, the Parish Council of the Parish of East Baton Rouge adopted a resolution, section 1 thereof reciting:

'January 27, 1964 is hereby proclaimed to be Charles Hurt Day. The officers and employees of the City of Baton Rouge and the Parish of East Baton Rouge and all citizens of this community are urged and requested to remember Charles Hurt and the duty he performed on this day and to further generously contribute to the Charles Hurt Memorial Fund in order that the family of Deputy Hurt may be cared for and his memory preserved in the annals of law enforcement in this Parish and State.'

The MORNING ADVOCATE, Baton Rouge, Louisiana, of Thursday, January 23, 1964, carried a picture of Sheriff Bryan Clemmons and Mrs. Hurt. Below the picture was the following:

'MEMORIAL AWARD--Sheriff Bryan Clemmons...