State v. Barton

• Decision Date: 26 March 1945
• Docket Number: 37777.
• Citation: 22 So.2d 183,207 La. 820
• Court: Louisiana Supreme Court
• Parties: STATE v. BARTON.

22 So.2d 183

207 La. 820

STATE v. BARTON.

No. 37777.

Supreme Court of Louisiana

March 26, 1945

Rehearing Denied April 30, 1945.

Appeal from Fourteenth Judicial District Court Parish of Allen; Mark C. Pickrel, Judge.

John R. Hunter, Jr., of Alexandria, and J. A. Williams, of Lake Charles, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Griffin T. Hawkins, Dist. Atty., Preston L. Savoy, Asst Dist. Atty., and Alan H. McLane, all of Lake Charles, for the State, appellee.

HAWTHORNE Justice.

The defendant, Alfred Sidney Barton, charged in a bill of indictment with the crime of aggravated battery, was tried convicted, and sentenced to serve a term of three years at hard labor in the Louisiana State Penitentiary. From the conviction and sentence he has appealed to this court.

In the court below, defendant reserved 13 bills of exception, but has abandoned in brief and in argument before this court all except Bills Nos. 5, 6, 7, 8, 11, and 12.

Bills of Exception Nos. 5, 6, and 8.

Counsel for defendant moved for the sequestration of witnesses, which motion was granted, and these bills were reserved to the ruling of the court exempting from such order the witnesses Captain Rivera, a medical officer; Major McCormick, an investigating officer, and Mr. Roland Bass and Sergeant Sol Goldstein, both peace officers.

The trial judge's per curiam to each of these bills reads as follows:

'The defendant moved for sequestration of the witnesses in the case and the Court granted the motion, excluding peace officers who held commissions in the Army, medical officers, and peace officers who held commissions in the State. None of these witnesses testified to any facts except such as were brought out by their investigation. The exclusion of the witnesses from the rule clearly is within the discretion of the trial Court and by permitting these witnesses to remain in the Court Room, the defendant could not have been injured in any way.'

Article 371 of the Code of Criminal Procedure provides that:

'The judge may, at any stage of the trial, order the sequestration of the witnesses. As soon as such order shall have been given it shall be the duty of the sheriff to take charge of the witnesses and to remove them to a place where they shall not be able to see or hear any of the proceedings taking place in court. Nor shall there be, while they shall be sequestered, any communication between them and others or between them and any witness who shall have testified. Any disregard of these provisions by a witness shall disqualify him from testifying and shall subject him to punishment for contempt ; provided, that the judge may in all cases, in his discretion, permit any witness to testify * * *.'

The rule that the ordering or refusing to order sequestration of witnesses is within the sound discretion of the trial court is well settled in this state. State v. Daniels, 122 La. 261, 47 So. 599; State v. High, 122 La. 521, 47 So. 878; State v. Bates, 140 La. 833, 74 So. 165; State v. Hardy, 142 La. 1061, 78 So. 116; State v. Constanza, 157 La. 411, 102 So. 507.

The record in this case does not show the nature of the testimony of these witnesses or to what facts they testified, nor is their testimony in the record. However, the trial judge in his per curiam states that none of these witnesses testified to any fact except such as were brought out by his investigation. In the absence of any showing that the ruling complained of was arbitrary and unreasonable, the exercise of the trial court's discretion in excluding these witnesses from the order of sequestration is beyond the control of the appellate court.

Counsel for defendant for reversal rely on the case of State v. Carter, 206 La. 181, 19 So.2d 41, 45, decided by this court on June 26, 1944. In that case the defendant was charged with the attempted murder of two deputy sheriffs, and, while these two were sequestered on motion of defendant, the court refused to apply the rule to three other deputy sheriffs and district attorney's investigators, although counsel for defendant before trial apprised the judge of the fact that these witnesses would be used against the accused and would testify to purported verbal admissions said to have been made by him, and further objected to these witnesses' testifying in chief and in rebuttal. The trial judge overruled defendant's objection to the exclusion of these witnesses from the rule on the ground that he had the discretion to permit them to remain in the courtroom. In that case the trial judge did not assign any reason for overruling defendant's motion for sequestration, but simply stated that it was within his discretion to do so.

In the case under consideration, however, our learned brother below said in his per curiam that none of the witnesses whom he excluded from the rule testified to any facts except such as were brought out by his investigation.

It is also true in the case here under consideration that the record does not disclose whether any objection was made to these witnesses' testifying in chief or in rebuttal, nor do we know to what facts they actually testified except as shown by the trial judge's per curiam, and the record does not show that, at any time before the trial began, counsel for defendant apprised the court of any fact to which these witnesses would testify.

In a per curiam by this court in the Carter case we stated: 'The sole question involved in the case is whether the judge abused his discretion in permitting the three deputies and the investigator to remain in the courtroom.' And, in reversing the court below, this court found that under the facts in that case the trial judge had abused his discretion, and that his permitting the witnesses to remain in the courtroom and testify over defendant's objection was prejudicial. However, this court said, in setting aside the conviction and sentence in that case, that it had no intention to, nor did it, overrule the previous cases announcing the general rule stated hereinabove.

We are therefore of the opinion that, from the record as made up in the case at bar, the bills in question do not show any abuse of the trial judge's discretion and are therefore without merit.

In the case presently before us, the per curiam of the trial court states that it excluded from the order of sequestration of witnesses peace officers and medical officers who held commissions in the Army and peace officers who had commissions from the State. In this connection, we think it proper to reiterate what was said in the Carter case, as follows:

'We do not think that under the provisions of Article 371 of the Code of Criminal Procedure district judges have the right to make a rule of court that all court officers are exempt from the order of sequestration of witnesses regardless of the importance of the witness' testimony in the case. If this were true, then the trial judges, by making such a rule of court, could, to a great extent, nullify the provisions of the above article and, in certain instances, deny the defendant a fair and impartial trial. We reiterate, the article does not give a judge an absolute and unreviewable discretion but one that must be exercised in such a way as not to deprive the accused of his right to a fair and impartial trial.'

Bill of Exception No. 7.

The district attorney in his opening statement read from a written statement allegedly made by a Mr. Strother, and referred to it in connection with what occurred on the night of the alleged crime. Counsel for defendant objected to this on the ground that it was not proper evidence and was hearsay, as the witness was present to testify, and that the reading from the statement to the jury before the trial of the case was prejudicial. This objection was overruled by the court, and counsel reserved this bill.

The trial judge's per curiam on this bill reads as follows:

'This bill was taken to the opening statement of the District Attorney. The district Attorney in his opening statement said that he would introduce the testimony of a prospective witness as to what occurred at the time of the alleged striking. The Court instructed the Jury that no hearsay evidence would be admitted and that the Jury would be properly instructed when the testimony was offered. The statement of the District Attorney could not have been prejudicial and, as a matter of fact, the statement made by the witness Strother was actually used in the cross-examination of Strother.'

Under the provisions of Article 333 of the Code of Criminal Procedure, it is made the mandatory duty of the district attorney in all cases triable by jury to make an opening statement to the jury, explaining the nature of the charge against the accused and the evidence by which he expects to establish the same. State v. Ricks, 170 La. 507, 128 So. 293; State v. Nahoum, 172 La. 83, 133 So. 370; State v. Ducre, 173 La. 438, 137 So. 745; State v. Silsby, 176 La. 727, 146 So. 684; State v. Elmore, 177 La. 877, 149 So. 507; State v. Garrity, 178 La. 541, 152 So. 77; State v. Bishop, 179 La. 378, 154 So. 30; State v. Sharbino, 194 La. 709, 194 So. 756.

It is to be noted that in the per curiam to this bill the trial judge states that he instructed the jury that no hearsay evidence would be admitted, and that the jury would be properly instructed when the testimony was offered. This being so, we are unable to see, and it has not been called to our attention, how the rights of the defendant were violated. The scope and extent of the district attorney's opening statement are within the control of the trial judge, in the exercise of a wise discretion, and convictions will not be set aside for error therein unless the...