State v. Carter
Decision Date | 26 June 1944 |
Docket Number | 37438. |
Citation | 206 La. 181,19 So.2d 41 |
Court | Louisiana Supreme Court |
Parties | STATE v. CARTER. |
Rehearing Denied July 14, 1944.
Maurice R. Woulfe, of New Orleans, and E. R. Stoker of Baton Rouge, for defendant and appellant.
Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst. Atty. Gen., Dewey J. Sanchez, Dist. Atty., Jimmie R. Major, Asst. Dist. Atty both of Baton Rouge, and Fred S. LeBlanc, Atty. Gen., and M E. Culligan, Asst. Atty. Gen., for appellee.
The accused was charged in a bill of information, in the first count with feloniously attempting to murder D. F. Goodwin, a deputy sheriff of East Baton Rouge Parish, and, in the second count, with attempting to murder B. E. Norwood, also a deputy sheriff, on December 25, 1942. After certain pleas were overruled, there was a trial on the merits resulting in a verdict of 'Guilty as charged.' He was sentenced to five years at hard labor in the State Penitentiary, on each count, the sentences to run concurrently.
The defendant appealed and relies upon twelve bills of exception for the annulment of the verdict and the sentences.
Bills of exception Nos. 3, 5, 6, 7, 8, 9 and 10 were reserved to the court's ruling in refusing to exclude three deputy sheriffs and special investigators of the District Attorney's office from the courtroom during the trial and overruling the accused's motion that they be sequestered with the other witnesses, and permitting them to testify in chief and rebuttal over the defendant's repeated objections.
Article 371 of the Code of Criminal Procedure is as follows:
The entire per curiam of the trial judge on these bills is as follows:
'The Court ruled and ordered a sequestration of the witnesses except the Court ordered that the rule would not apply to the deputy sheriffs nor to the special investigators of the District Attorney's office.
In the case of State v. Wheeler, 173 La. 753, 755, 138 So. 656, 657, the exception was reserved to the court's ruling in permitting, over defendant's objection, a witness to testify, who had remained in the courtroom after testifying under direct and cross-examination, and was recalled by the State, to rebut the testimony of the defendant, the court having previously ordered the witness sequestered. After citing Article 371 of the Code of Criminal Procedure, in upholding the district court's ruling, the Court stated:
'The italicized proviso of the quoted article of the Code of Procedure is specific and unambiguous. It provides that whether or not a witness shall be permitted to testify, under the circumstances presented in this bill of exception, is a matter which is addressed to the sound discretion of the court. In the absence of a showing that the ruling complained of was arbitrary and unreasonable, the exercise of the trial court's discretionary powers is beyond the control of the appellate court. There is no such showing here. On the contrary, the court's per curiam to the bill is not questioned. It is as follows:
See also C.J.S. [Criminal Law], Vol. 23, page 377, par. 1010, page 381, par. 1011; Freddy v. State 229 S.W. [533], 534.
It is clear that the trial judge does not have an absolute and unreviewable discretion, under the above quoted article. If district courts could make rules and rulings that would in effect nullify the provisions of the article, the right granted to the accused therein would be a useless and vain one. If the discretion vested in the trial judge is arbitrarily and unreasonably exercised to the prejudice and injury of the defendant in obtaining a fair and impartial trial, his action in that respect should be set aside by granting a new trial.
In the instant case, the defendant, a colored man, was charged with attempting to murder two white deputy sheriffs. His plea was self-defense. The two deputies who were assaulted and who were excluded from the courtroom, on the defendant's motion, testified that they were shot by the accused without any cause or provocation. The defendant, on the other hand, testified that he shot at the deputies with one of their own guns after being compelled to disarm them on order to save his own life, after he had been severely and brutally beaten by one of the deputies with the gun. The three deputy sheriffs and district attorney's investigators were permitted to remain in the courtroom during the entire trial, although counsel for the defendant, in his motion for a sequestration before the trial started, 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 the defendant. The purpose of removing the witnesses from the courtroom to a position where they could neither hear nor see what was taking place in the trial, is to have them testify to what they know in a truthful and accurate way and to prevent a witness from being guided and influenced by the testimony of the others. Collins v. State, 77 Tex.Cr.R. 156, 178 S.W. 345, 351; State v. Brookshire, 2 Ala. 303; Roberts v. State, 122 Ala. 47, 25 So. 238.
In Ray v. Com., 241 Ky. 286, 43 S.W. 2d 694, at page 696, the Court said:
'The other ground for reversal is meritorious, and it is sustained. It is this: Before the attorney for the commonwealth stated the case to the jury, the defendant requested of the court that the witnesses be put under the rule and excluded from the courtroom. * * *
'The case of Roberts v. State, 100 Neb. 199, 158 N.W. 930, 932, Ann.Cas.1917E, 1040, is a case in many respects like this, and in the opinion reversing the judgment it is said:
* * * '
'We are not saying the witnesses against Charley Ray have testified falsely, but we do say that under the peculiar facts of this case it was an abuse of discretion to overrule the defendant's motion, and for that error this judgment is reversed.'
In Martinez v. State, 96 Tex.Cr.R. 138, 256 S.W. 289, 290, the Court stated:
* * *'
In Holder v. State, 136 Fla. 880, 187 So. 781, at page 782, it was held:
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