State v. Birbiglia

Citation149 La. 4,88 So. 533
Decision Date29 November 1920
Docket Number24304
CourtSupreme Court of Louisiana
PartiesSTATE v. BIRBIGLIA et al

On Rehearing, February 28, 1921; Rehearing Denied May 2, 1921

Appeal from Criminal District Court, Parish of Orleans: Joshua G Baker, Judge.

Felix John Birbiglia and Charles Jones Zalenka were convicted of murder, and appeal.

Affirmed on rehearing.

Wm. H Byrnes, Jr., and Frank S. Normann, both of New Orleans, for appellant Birbiglia.

Ulic J Burke, and Edmund G. Burke, both of New Orleans, for appellant Zalenka.

A. V. Coco, Atty. Gen., Chandler C. Luzenberg, Dist. Atty., Robt. H. Marr, Dist. Atty., Chas. G. Gill, Asst. Dist. Atty., and Manning W. Heard, Asst. Dist. Atty., all of New Orleans, for the State.

PROVOSTY, J. O'NIELL, J., concurs in the decree.

OPINION

PROVOSTY, J.

The two accused, Felix Birbiglia and Charles Zalenka, murdered a young woman at a lonely spot on the outskirts of this city after nightfall while they and she were joy riding in an automobile. They shot her with a pistol, and beat her on the head with it, and threw her body down an embankment into soft mud, thinking that it would sink and disappear. Their motive was robbery of valuable jewelry she usually wore. They had planned the crime before starting out on the ride. A third young man, named Burns, was driving the automobile. He was a cousin and friend of Zalenka, but may have been ignorant of the intentions of the other two. The car was one which he operated on the streets for hire, as an employ of its owner; and certain it is that Birbiglia paid him for its hire the amount which would have to be accounted for to its owner for the time occupied by the ride. As soon as the other two left his car, he went to his father, a police officer, and told of the crime. The other two were immediately arrested; and when brought to the office of the superintendent of police freely confessed. The jewelry was found where Birbiglia said he had hidden it; and all the other attending circumstances cropping out of the confessions were verified, and they corroborated the confessions. From these confessions it appeared that the crime was planned, and that the pistol was handed to Birbiglia by Zalenka at the moment of the shooting, and that Birbiglia did the shooting and the beating.

Birbiglia moved to quash the indictment, on the ground that only nine jurors were present when it was found. The contention is that all 12 of the grand jurors must be present at the finding of an indictment. The contrary was held in the cases of State v. Pailet, 139 La. 697, 71 So. 951, Ann. Cas. 1918A, 102, and State v. Walker, 137 La. 197. 68 So. 407. We find no occasion to rediscuss the question.

The same accused moved for a change of venue on the ground of prejudice against him in the public mind, created by the newspaper publication of the confessions and of the details of the crime, and by the newspaper comments. Much evidence was taken in that connection. It satisfied the learned trial judge, and satisfies us that a fair trial could be had. We see no reason for rehashing this evidence, which is practically all one way.

Zalenka and Burns moved for a severance on the grounds stated in the motion as follows:

"On motion of Charles Zalenka and Robert Burns, defendants herein, through Ulic J. Burke, their attorney, and on suggesting to the court that movers have been jointly indicted for the crime of murder with the other defendant, Felix John Birbiglia; that their defenses are antagonistic to those of the other defendant; that the confessions obtained by the police from the defendants herein incriminating each other, and designed to be used in evidence against movers on the trial of the case, would be greatly to their prejudice; and on further suggesting that movers desire to sever from the other defendant in this case in the defense thereof, and to have a separate trial."

The court denied this motion for reasons stated as follows:

"Per Curiam. The sole ground urged for a severance was based upon the contention of counsel that the state would introduce confessions of the defendants which were antagonistic, and the reply of the district attorney that the confessions to be used were not antagonistic, but, on the contrary, were corroborative of each other. In my opinion, there was nothing in the confessions introduced on the trial of the case which entitled the defendant to a severance. Nothing was before the court to show whether the defendants would testify in their own behalf, or what their sworn statements, if they did so testify, would be."

On the day of the trial, just before entering upon the trial, the state applied for a severance as to Burns, and it was granted.

Birbiglia complains that the ordering of this severance thus on the threshold of the trial, after it had been at one time opposed by the district attorney and refused, took him by surprise, and has operated to his prejudice, by practically depriving him of the benefit of the testimony of Burns, who without the severance would have had to take the stand as a witness in his own behalf, and thereby subjected himself to cross-examination, when "from his unwilling lips could have been wrung the true story of the crime."

We are referred to no law by which the discretion of the court in granting a severance on application of the state is in any way limited, and we know of none.

As to Zalenka's motion for a severance, the allegations of fact contained in it were not sworn to, and therefore the facts therein alleged were not established as facts even prima facie. State v. Simon, 115 La. 732, 39 So. 971; 16 C. J. 788. So that the judge was at entire liberty to disregard them. Moreover, it does not suffice in such a motion to allege in general terms that the defenses are antagonistic. The facts should be stated so as to enable the judge to ascertain whether the antagonism is such as to necessitate a separate trial. No evidence was offered on the trial of this motion. The judge in passing upon it had to base himself upon such knowledge as he had derived from the confession theretofore made by Birbiglia; and, judging from that confession, there was no intention on the part of Birbiglia to shift the responsibility for the crime to Zalenka. In this confession Birbiglia had retained to himself full responsibility. Our learned brother was therefore well founded in his ruling.

But on the trial each of the two accused, testifying in his own behalf, did endeavor to exculpate himself as far as he could at the expense of the other; and hence their defenses did eventually prove to be antagonistic.

Under these circumstances, we are of the opinion that, upon a proper showing, timely made, for a severance before the trial which is to be hereafter had, a severance should in fairness be granted. Our reason for so holding is that in the confessions made in the office of the superintendent of police each of the accused implicates his associate in the crime, so that the confession of each of them will condemn the other, unless the jurors are able to liberate their minds from the impression which the confession cannot fail to have made. And as stated by the juror McFee on his voir dire (hereinafter to be referred to) "that is a rather difficult thing to do." A trained mind may, no doubt, divest itself of a conceived notion, but the average juror cannot so well do so, especially where the impression is deep, as in a case of this kind.

In State v. Taylor, 45 La.Ann. 605, 12 So. 927, this court said:

"The principle is clearly laid down by the text-writers on the subject, in a number of authoritative decisions, that the defendants cannot claim separate trials as a matter of right, although they sever in their pleas, but that the court, in its discretion, may allow them to be tried separately.

"There are exceptions to the rule. One, for instance, where one joint defendant has made a confession implicating both, and which the prosecution intends to offer on the trial."

In State v. Lee, 46 La.Ann. 623, 15 So. 159, this court said:

"It is proper for the judge to grant a severance in case the confession of one jointly indicted may implicate both -- in case the prosecution intends to offer same on the trial."

In State v. Desroche, 47 La.Ann. 651, 17 So. 209, this court said:

"When * * * the defenses of each are antagonistic, and the confession of each, designed to be used, incriminates the other, we think the case for a severance is presented; otherwise each is tried by illegal evidence, the confessions being used."

In State v. Duplechain, 136 La. 389, 67 So. 175, the court said:

"As no confession was offered, the appellants were not prejudiced by the overruling of their motion for a severance."

In State v. Bessa, 115 La. 259, 38 So. 985, where the accused were jointly indicted for a crime one or the other of whom had committed, and the defense of each was that the other was the guilty party, this court directed that a severance be granted, simply because the defenses were antagonistic.

The general rule, no doubt, is that the granting of a severance is a matter within the discretion of the trial judge; but the rule is not without exceptions, as appears from the foregoing.

True in State v. Johnson, 116 La. 856, 41 So. 117, this court incidentally remarked that the reason for allowing an exception to the said rule in a case where the confession of one defendant implicating another was intended to be used "would seem to have been removed by the passage of Act 185, p. 355, of 1902," fixing the qualification of witnesses. But because the accused and his codefendants may testify does not obliterate from the minds of the jurors the deep impression which the confession of one of the accused may...

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    • May 13, 1987
    ... ...         There was also testimony from police officers and forensic experts. Richard P. Hanlon, a State police trooper, testified that, in the days following the assault, Peloquin identified photographs of Mosso and Sinnott as those of Tamburro's ... Birbiglia, 149 La. 4, 30, 88 So. 533 (1921) (similar in that no eyewitness to murder testified at trial); Murray v. State, 528 P.2d 739, 740 (Okla.Crim.1974) ... ...
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