State v. Labat

• Citation: 75 So.2d 333,226 La. 201
• Decision Date: 02 July 1954
• Docket Number: No. 41718,41718
• Parties: STATE of Louisiana v. Edgar LABAT and Clifton Alton Poret.
• Court: Supreme Court of Louisiana

Page 333

75 So.2d 333

226 La. 201

STATE of Louisiana v. Edgar LABAT and Clifton Alton Poret.

No. 41718.

Supreme Court of Louisiana.

July 2, 1954.

Rehearing Denied Oct. 5, 1954.

G. W. Gill, Mark W. Sackett, Rudolph F. Becker, Jr., New Orleans, for appellants.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden, Dist. Atty., Herbert J. Garon, Asst. Dist. Atty., George J. Gulotta, Executive Assistant Dist. Atty., New Orleans, for appellee.

HAWTHORNE, Justice.

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 defendant 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 fugitive 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 counsel 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 the 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 reference 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 offer 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 State 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, 207 La. 928, 22 So.2d 273. See State v. Mattio, 212 La. 284, 31 So.2d 801; State v. Simpson, 216 La. 212, 43 So.2d 585; State v. Haddad, 221 La. 337, 59 So.2d 411. Furthermore, since the State did not offer the confession in evidence, the defendant Labat was in no way prejudiced by the refusal of the judge to grant him a pre-trial inspection of it.

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 particulars 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 fact, 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 accusation against him, and it was sufficient for this purpose. See State v. Michel, 225 La. 1040, 74 So.2d 207, and authorities therein cited. The indictment also informs him that he was charged as a principal. The answer to the motion for a bill of particulars in the instant case gave this defendant all the information necessary for a proper defense to the charge, and what he was really seeking was to have revealed to him the evidence which the State expected to offer on the trial of the case, or, in other words, advance factual information on the State's case. Moreover, the granting or refusal of a bill of particulars addresses itself to the sound discretion of the trial judge. State v. Poe, 214 La. 606, 38 So.2d 359, and authorities therein cited. See also State v. Simpson, 216 La. 212, 43 So.2d 585; State v. Robertson, 158 La. 300, 103 So. 821. We find no abuse of discretion in the instant case.

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 venire, from the grand jury panel involved, and from the grant 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, 204 La. 24, 14 So.2d 873, appeal dismissed 320 U.S. 714, 64 S.Ct. 202, 88 L.Ed. 419. See also State v. Michel, 225 La. 1040, 74 So.2d 207.

The grand jury which indicted these defendants was empanelled on September 5, 1950, and the indictment we returned on December 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 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 contend 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 defendant 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...