State v. Bessar

• Decision Date: 16 February 1948
• Docket Number: 38256.
• Citation: 34 So.2d 785,213 La. 299
• Court: Louisiana Supreme Court
• Parties: STATE v. BESSAR et al.

34 So.2d 785

213 La. 299

STATE v. BESSAR et al.

No. 38256.

Supreme Court of Louisiana

February 16, 1948

Appeal from Criminal District Court, Parish of Orleans; J. Bernard Cocke, Judge.

Chandler C. Luzenberg, Jr., and Bentley G. Byrnes, both of New Orleans, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Sr., Asst. Atty Gen., and Herve Racivitch, Dist. Atty., and Guy Johnson Asst. Dist. Atty., both of New Orleans, for appellee.

FOURNET Justice.

Wilbert Powell and Joseph Bessar, Jr., having been jointly indicted and tried for the murder of Bernice Marie Roy, are appealing from their conviction and death sentence.

Powell and Bessar, who lived in the same house in the city of New Orleans but occupied different rooms, agreed after playing pool on the night of November 30, 1945, to rob someone (to 'make some money' as they express it in their confessions), they being at the time armed with a gun belonging to Bessar. Leaving the poolroom they proceeded out Tulane avenue toward the lake. They walked several blocks before seeing anyone, it then being around midnight. At the corner of Derbigny and Tulane they saw a soldier, Sgt. W. F Mers, and his companion, Miss Bernice Marie Roy, and followed them down the street. Realizing they were being followed, Mears and Miss Roy crossed Tulane to the uptown side of the avenue, the defendants doing likewise. Continuing to follow their victims, Powell pulled the gun and ordered Mears to give them everything he had. Mears passed his wallet to Powell and he, in turn, handed it to Bessar together with a ring he also took from Mears. Bessar then seeing the wrist watch Mears was wearing demanded it. By this time the four had reached the intersection of Tulane and Bolivar. Bessar at this point ordered the soldier and the young lady to turn and proceed up Bolivar to a parking lot in the rear of a drug store at the corner. It appears that in this parking lot Powell kept the soldier at the point of the gun with his back to the wall while Bessar, according to the testimony of Mears, attempted to rape the young lady. This is corroborated by Miss Roy's physical condition, as testified to by the coroner. Miss Roy began screaming during her scuffle with Bessar and the struggle was only interrupted by the presence of an elderly woman who passed the lot, paused, and was told to keep going but, instead, turned back, causing Powell to decide to leave and to call for Bessar to follow him. They had gone only a few steps, according to Powell's confession, when he turned and fired at Miss Roy, who had begun to scream again. The bullet struck her between the eyes. Mears ran to Tulane avenue and secured the help of some people on a passing street car. Miss Roy was carried by one of these passengers to a hospital in the immediate vicinity. She died there of the bullet would the next day. In the meanwhile, the defendant ran away from the scene up Bolivar street, Powell emptying the gun of all of the cartridges, including the empty one, and throwing them into the street while they were still running. Arriving at their home, a few blocks up Bolivar, Bessar gave the wrist watch and ring to Powell who put them, together with the gun, in a hole in the floor near the fireplace, covering the hole with a piece of tin and a basket of coal. (According to Bessar's confession he lost the wallet.) Later in the morning and only a couple of hours after the crime, Powell was arrested and taken to the First Precint Police Station. Bessar's arrest occurred a few minutes later and he was also taken to this station. There both of the defendants confessed. Several days later, Powell took the officers to his home and showed them where he had hidden the gun and the articles taken from the victim Mears. On December 6, 1945, Powell and Bessar were arraigned on an indictment returned the same day jointly charging them with the murder of Miss Roy and their trial was fixed for January 16 following, individual attorneys being appointed by the court to represent the two defendants.

Prior to the date of the trial counsel for the defendants obtained permission from the court to file certain preliminary pleadings, counsel for Powell filing a motion for the appointment of a lunacy commission and counsel for Bessar filing a motion to quash the indictment and a motion for a bill of particulars. The trial judge's action in overruling the motion for the lunacy commission, the motion to quash the indictment, and in overruling Bessar's motion for a new trial, forms the basis of the appeals taken by the defendants.

Attached to Powell's motion for the appointment of a lunacy commission to inquire into his mental condition are five affidavits, in all of which it is stated Powell's mother and grandfather died insane and that a half-brother has, on several occasions, been confined to the state institution for the insane. In all of these is also contained the uncorroborated statement that the affant is of the opinion Powell was then and had been for some time unable to distinguish between right and wrong.

In disposing of the bill of exceptions reserved when this motion was overruled, the trial court judge makes the following pertinent observations in his per curiam:

'The Court found nothing in the record, as made up at that time, which would afford a reasonable ground to believe that Powell was then insane. The mere fact that other members of the family of accused might have been insane, did not justify the belief that accused was then insane, nor did the uncorroborated statement of affants afford this belief. In this connection it will be noted, that none of the affidavits made part of the record, attempt in any manner to present any facts detailing the actions of the accused, which might justify their conclusion that the accused was insane at the present time. Nor did the court have the benefit of a cross-examination of these affiants as to the basis of their conclusions as to the present sanity of the accused.

'On the other hand, Dr. C. Grenes Cole, Coroner, and an admitted expert in mental diseases, testified that he had examined the accused on the day before for an hour; that it was his opinion that Powell was sane; that he knew the difference between right and wrong and had the capacity to choose between the two; that he was sane and was able to understand the proceedings against him.

'Thereafter, on the trial of the defendant, Addie M. Kenner, George Brooks, Lula Mae Rose and Willie E. Weston were placed on the witness stand by the defense. None of these witnesses attempted to express an opinion as to the sanity of Wilbert Powell, nor did any of them testify to the slightest abnormal behavior of Powell. They contented themselves with the expression that the mother of the defendant was insane at her death.

'On behalf of the State, Dr. C. Grenes Cole and Dr. Edmund Connely, each testified in rebuttal, that Wilbert Powell was sane and responsible and fully understood the nature and quality of his acts. Dr. Cole testified that he had examined the defendant four times, while Dr. Connely said he had examined defendant on two occasions.

'Over and beyond the testimony herein detailed, the Court had the opportunity to observe Wilbert Powell on December 6, 1945, and again on January 3rd, 11th, 17th and 18th, 1946.

'In the opinion of the court there was no reasonable ground to believe the defendant Wilbert Powell was insane or mentally defective to the extent that he was unable to understand the proceedings against him of to assist in his defense, but on the contrary, the court was of the opinion that the defendant was then sane and was sane on his trial. For these reasons, the court denied defendant's application.'

In the Code of Criminal Procedure it is provided that 'If before or during the trial the court has reasonable ground to believe that defendant, against whom an indictment has been found or information filed, is insane, or mentally defective, to the extent that he or she is unable to understand the proceedings against him or her or to assist in his or her defense, the court shall immediately fix a time for a hearing to determine the defendant's mental condition. The court may appoint two disinterested physicians to examine the defendant with regard to his present mental condition and to testify at the hearing.'...