State v. Bickham

• Court: Louisiana Supreme Court
• Writing for the Court: VIOSCA; HAMITER
• Citation: State v. Bickham, 239 La. 1094, 121 So.2d 207 (La. 1960)
• Decision Date: 31 May 1960
• Docket Number: No. 44966,44966
• Parties: STATE of Louisiana v. Moreese BICKHAM.

Page 207

121 So.2d 207

239 La. 1094

STATE of Louisiana v. Moreese BICKHAM.

No. 44966.

Supreme Court of Louisiana.

May 31, 1960.

Rehearing Denied June 29, 1960.

G. Wray Gill, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jas. T. Burns, Dist. Atty., Covington, W. W. Erwin, Asst. Dist. Atty., Franklinton, for appellee.

VIOSCA, Justice.

Defendant was charged by indictment with the murder of Gus Gill on July 12, 1958 in the Parish of St. Tammany, Louisiana. He was found guilty by a jury and sentenced by the court to death. He has appealed to this Court relying upon thirty-one bills of exception for the reversal of his conviction and sentence.

Bill of Exception No. 1 was reserved to the court's refusal to order the state to elect under which section of LSA-R.S. 14:30 ¹ defendant was charged. ² Defendant filed a motion for a bill of particulars in which he alleged: 'That the bill of indictment charges your defendant, with murder, without stating the section of the Article under which he is charged and your defendant believes that he is entitled to know and be apprized judicially by answer to this bill of particulars of the following; and that until such particulars be furnished, that he be not called upon to answer thereto.

'(a) That the State should set forth and allege the section of the Article under which your defendant is charged.'

In answer to the motion for a bill of particulars the district attorney set forth: 'That the defendant is being prosecuted for the crime of murder under both Subsection 1 and Subsection 2 of R.S. 14:30, in that the offense was committed while the defendant had the specific intent to kill or inflict great bodily harm, and under Subsection (2) in that during the course of the commission of the offense, the defendant was engaged in the perpetration of armed robbery.' Defendant contended that the answer was inadequate and that the state should elect under which subsection defendant was being prosecuted. The trial judge refused to order the state to elect and the defendant reserved a bill of exception to this ruling.

The bill is without merit. Murder can be committed under Subsection (1) or under Subsection (2) of LSA-R.S. 14:30 or under both subsections at the same time and the state cannot be ordered to elect when it charges both. State v. Rowan, 233 La. 284, 96 So.2d 569. ³

Defendant filed a prayer for oyer in which he asked that he be furnished with any written statement or confession made by defendant and that any verbal statements which were made in addition to the written statement be reduced to writing and copies thereof furnished to defendant. The district attorney furnished a photostatic copy of the written statement and/or confession made by defendant and agreed to permit defendant to inspect the original, but he declined to reduce to writing any verbal statements or confessions. The trial judge granted the prayer for oyer of the written statement or confession but overruled the motion as to the oral statements, to which ruling defendant reserved Bill of Exception No. 2.

In his per curiam the trial judge states that under the decision of this Court in State v. Dorsey, 207 La. 928, 22 So.2d 273 the defendant is entitled to inspect and copy his written confession but there is no law under which verbal statements made by a defendant before trial may be ordered reduced to writing and submitted to defendant. The trial judge is correct.

Our ruling in State v. Dorsey, supra, does not apply to oral confessions by the defendant. State v. Lea, 228 La. 724, 84 So.2d 169; State v. Martinez, 220 La. 899, 57 So.2d 888; State v. Simpson, 216 La. 212, 43 So.2d 585.

Bill of Exception No. 3 was reserved to the ruling of the trial judge refusing defendant's request to have the motion for the bill of particulars and the answer thereto read to the jury and explained to them. Bill of Exception No. 4 was reserved to the refusal of the trial judge to order the district attorney to elect under which subsection of LSA-R.S. 14:30 he was proceeding and to read that portion of the statute to the jury and explain its application to the indictment.

The trial judge properly overruled both motions. As the trial judge correctly states in his per curiam to Bill of Exception No. 3 there is nothing in LSA-R.S. 15:333 requiring that the motion for a bill of particulars and the answer thereto be read to the jury. The bill of particulars forms no part of the indictment and cannot add to or detract therefrom. State v. Dabbs, 228 La. 960, 84 So.2d 601. The prosecution is on the indictment and not on the bill of particulars. State v. Bienvenu, 207 La. 859, 22 So.2d 196.

Bill of Exception No. 4 is a reiteration of Bill of Exception No. 1 and no further discussion is necessary.

Bill of Exception No. 5 was taken when the witness, Mayor Prieto, was permitted over objection to answer the question: 'Mr. Prieto, do you, of your own knowledge, know what the orders were and the procedure followed by officers on duty at night, in making arrests?' The objection made was that the witness should not be permitted to answer unless he knew of his own knowledge. As the question and the answer of the witness were limited to what he knew of his own knowledge, there is no merit to the objection. Bill No. 5 was also reserved to the ruling of the court permitting Bill Parker, who was engaged in police work in the Town of Mandeville to testify on the same subject. Parker testified that he worked with Gus Gill, Jake Galloway, and Mayor Prieto in police work and that there was a common procedure in making arrests at night, for one officer to get another officer to accompany him. Counsel for defendant objected to all testimony with respect to this arrangement.

The per curiam of the trial judge states that it was the state's theory that on the night of the murder Gill and Galloway were both killed by defendant as they were attempting to arrest him. The judge states: '* * * I see no reason why the procedure employed in the Town for two officers to be present when making an arrest could possibly prejudice the defendant. Accordingly, I overruled the objection to the testimony of the two witnesses which forms the basis of Bill of Exception No. 5.' There is no merit to this bill.

Bills of Exception Nos. 6, 7, 8, 9 and 10 may be considered together as they all relate to the admissibility of the written and oral confessions, and in many respects overlap. The objections to the admissibility of the confessions are based on the following grounds: (1) That the written confession given by the defendant to the officers in Baton Rouge and the verbal statement made by the defendant in New Orleans were not free and voluntary; (2) that the defendant was not capable of knowing what he was doing when he made the written confession; and (3) that the oral confession was not reduced to writing and was not repeated verbatim by the witnesses.

In his per curiam the trial judge very ably answers the first objection as follows:

'The record reflects that the written confession was the first that was given by this defendant. The two officers of the Baton Rouge Police Force, namely, Lt. Ballard and Det. Hewitt, talked to him in Baton Rouge Hospital shortly after his arrest and in addition to their testimony that they used no force, coercion, threats, intimidation or inducements, there was the testimony of the attending physician, Dr. Byrd, who was present the whole time, and said he heard no threats or intimidation, as well as the testimony of Dr. Williams, the Coroner, who was likewise present and heard no threats, coercion or promises. All these witnesses testified the defendant appeared to be perfectly normal, and even though he had been shot, the would was a superficial one and just under the skin about three inches in length. There were two holes in his side just under the skin, apparently denoting the entrance and exit of the bullet. The doctors testified that the defendant was suffering no pain from the superficial wound and the only medical attention that was furnished was swabbing out of the wound and placing some mercurochrome on it, as well as giving the defendant an injection of penicillin. They further testified that this penicillin would not dull his mental processes. This statement was written out and signed on each page by this defendant while he was at Baton Rouge Hospital. Shortly thereafter, the two officers took the defendant to Baton Rouge Police Headquarters where they met Deputy Jenkins and Deputy Parker from St. Tammany Parish, and in the presence of all of the officers, the defendant wrote out an additional statement wherein he stated he had read the statement consisting of four (4) pages and it was true except for one thing he left out and that was that he took two dollars and some change off the one closest to his house. (By 'the one' meaning, of course, one of the officers he had killed.) When this additional statement was written on the statement by the defendant, all the officers, Ballard, Hewitt, Jenkins and Parker testified that no force was used on the defendant, nor did they make any promises to him, and he willingly talked and told them about the whole matter. As the record reflects, all this testimony was taken out of the presence of the Jury and at the conclusion of the State's part of the case to show the confession was free and voluntary, the defendant was granted an opportunity but did not offer any testimony in rebuttal. Consequently, I ruled that the written confession was freely and voluntarily given by this defendant. On Monday, July 14, 1958, Sheriff Andrew L. Erwin, District Attorney Burns and Mr. Gaston Laneaux went to Parish Prison in New Orleans, where the defendant was incarcerated. He was brought to the office of the Criminal Sheriff of the Parish of Orleans, where he was questioned by the District Attorney and the Sheriff, and according to...