State v. Daniels

• Citation: 263 So.2d 859,262 La. 475
• Decision Date: 05 June 1972
• Docket Number: No. 51577,51577
• Parties: STATE of Louisiana v. Lee DANIELS.
• Court: Supreme Court of Louisiana

Page 859

263 So.2d 859

262 La. 475

STATE of Louisiana v. Lee DANIELS.

No. 51577.

Supreme Court of Louisiana.

June 5, 1972.

Rehearing Denied June 29, 1972.

Dismissing Opinion June 30, 1972.

Ponder & Ponder, L. B. Ponder, Jr., Amite, for defendant-appellant.

Palmer & Palmer, Charles B. W. Palmer, Amite, for amicus curiae.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Leonard E. Yokum, Dist. Atty. William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.

McCALEB, Cheif Justice.

On this appeal from his conviction for attempted aggravated rape, for which he was sentenced to serve five years at hard labor in the State Penitentiary, Lee Daniels relies on twelve bills of exceptions to obtain a reversal of the conviction.

Bill No. 1 was reserved when the trial court overruled a motion to quash the indictment. The grounds for the motion are three-fold, to-wit: 1. The indictment fails to charge an offense which is punishable under a valid statute, and does not conform to the constitutional requirements that the defendant should be informed of the nature and circumstances of the charge in the indictment; 2. The indictment is duplicitous in that it contains a number of offenses in general and none specifically; and 3. The State fails to give a sufficient bill of particulars.

1. The indictment recites that on about May 30, 1970 the appellant 'attempted to commit aggravated rape upon Patricia Harrison, in violation of Articles 27 and 42 of the Louisiana Criminal Code.'

The indictment is drawn in the short form for an 'attempt' as authorized by C.Cr.P. Art. 465, and it adheres strictly to the form therein set out. The validity and constitutionality of short form indictments and bills of information, when used in connection with a bill of particulars, has so often been upheld by this Court that it is hardly necessary to cite authority therefor. Nevertheless, since defense counsel in the instant case has again raised the issue, although he has not argued it seriously, we mention a few of the pertinent decisions holding that the statute authorizing the short form and its use is constitutional. State v. Nichols, 216 La. 622, 44 So.2d 318 (1950); State v. Eyer, 237 La. 45, 110 So.2d 521 (1959); State v. Fulghum, 242 La. 767, 138 So.2d 569 (1962), cert. den., 371 U.S. 5, 83 S.Ct. 82, 9 L.Ed.2d 50; State v. Howard, 243 La. 971, 149 So.2d 409 (1963); and State v. Cooper, 249 La. 654, 190 So.2d 86 (1966).

2. The assertion that the indictment is duplicitous is patently without substance. R.S. 14:42 defines the crime of aggravated rape and R.S. 14:27 condemns attempts to commit a crime. Manifestly, the indictment sets out the commission of the crime of attempted aggravated rape, and only that crime.

3. Likewise, appellant's charge that the State failed to give a sufficient answer to a motion for a bill of particulars is groundless. The motion to quash the indictment in which the assertion is made was filed on the same day as the motion for a bill of particulars was filed. Obviously, the State then had not even filed its answer thereto. Subsequently, the answer was filed. All of the information sought in the motion for a bill of particulars was given, save with regard to whether the State planned to use any oral inculpatory or exculpatory remarks, and the substance thereof.

In response to these question the State answered that it was not required to answer them at that time.

Under our well-settled jurisprudence the rule which permits a pretrial inspection by an accused of written confessions or inculpatory statements does not apply to oral ones. State v. Lea, 228 La. 724, 84 So.2d 169 (1955), cert. den. 350 U.S. 1007, 76 S.Ct. 655, 100 L.Ed. 869; State v. Bickham, 239 La. 1094, 121 So.2d 207 (1960), cert. den. 364 U.S. 874, 81 S.Ct. 123, 5 L.Ed.2d 98; State v. Manuel, 253 La. 195, 217 So.2d 369 (1968); and State v. Pesson, 256 La. 201, 235 So.2d 568 (1970).

Because appellant was not entitled to information concerning oral statements, and because the other information sought in the motion for a bill of particulars was furnished by the State in its answer thereto, the answer was sufficient.

The motion to quash the indictment was properly overruled.

On the day of the trial the State, in conformity with the provisions of C.Cr.P. 768, ¹ notified appellant's counsel that it intended to introduce oral inculpatory statements made by appellant. At the commencement of the trial defense counsel moved orally to suppress the verbal statements. It was overruled and Bill of Exceptions No. 2 was reserved.

The bill is not meritorious. Oral confessions and inculpatory statements are not subject to a motion to suppress. Such a motion may be directed only to written confessions or written inculpatory statements. C.Cr.P. Art. 703.

It also appears that when the motion to suppress was overruled, defense counsel sought a continuance which was denied. In this Court he argues that the trial court erred in failing to grant the continuance to permit him to file timely a motion to suppress the statements. The motion was overruled, and properly so. Inasmuch as the oral statements were not subject to a motion to suppress, and since notice of the statements was served on defense counsel within the time set forth in C.Cr.P. Art. 768, no continuance was necessary. Besides the motion for a continuance was not in writing and verified as is required by C.Cr.P. Art. 707.

The trial court did not err in overruling the motion to suppress and the motion for a continuance.

Bill of Exceptions No. 3 was not orally argued, nor is it mentioned in appellant's brief here. We presume that it has been abandoned.

Bills of Exceptions No. 4, 5, 6, 7 and 8 were reserved when, over defense counsel's objection, the court permitted certain witnesses to be questioned concerning prior arrests of the accused. The witnesses were defense witnesses, called for the purpose of establishing the good reputation of appellant. After testifying on direct as to his good reputation, they were asked on cross-examination whether they were aware that appellant had formerly been arrested for driving while intoxicated and for attempted rape.

There was no error in permitting the questions. In State v. Simpson, 247 La. 883, 175 So.2d 255 (1965), we stated:

'It is well settled in the jurisprudence that where a witness for the defendant testifies as to his good character and reputation, the witness may be questioned as to particular facts and as to previous arrests of the accused on whose behalf he is testifying. State v. Powell, 213 La. 811, 35 So.2d 741; see State v. Thornhill, 188 La. 762, 178 So. 343.'

See also State v. Pain, 48 La.Ann. 311, 19 So. 138 (1896); State v. LeBlanc, 116 La. 822, 41 So. 105 (1906); State v. Oteri, 128 La. 939, 55 So. 582 (1911); and State v. Jacobs, 195 La. 281, 196 So. 347 (1940).

In Bill of Exceptions No. 8 it is further asserted that the trial court erred in not permitting defense counsel to conduct 're-redirect' examination of Booker T. Lawson, a defense witness who had testified in chief as to appellant's reputation. Much discretion is vested in the trial judge in these matters. The record reflects that he had already been very lenient in the questioning of this witness, and had permitted a re-direct examination. It was only when defense counsel stated that no new matter would be brought out on the 're-redirect' examination that he refused counsel's request, stating that it could only be repetitious. Moreover, the record reveals that the matter being elicited in this series of questioning was not really pertinent to the issues and was not particularly helpful to the case of either the State or or the appellant. No prejudice resulted from the court's ruling.

Bills of Exceptions Nos. 9 and 10 were reserved when the trial court refused to give two special requested charges (Nos. 2 and 5) to the jury.

Requested special charge No. 2 reads:

'Affirmative testimony of express oral comments of the neighbors, friends and acquaintances of the accused upon the reputation of the accused is not always required and that evidence that the character of the accused had never been denied or doubted or even discussed or spoken of among his acquaintances, though negative in form, is always admissible and often of the highest value.'

The charge was properly refused. In our opinion it was not wholly correct. ² We find no law, for instance, which holds that evidence that an accused's character has never been denied, doubted or discussed or spoken of is often of the 'highest value.'

True, it is Admissible, and testimony to this effect Was permitted to be given by appellant's character witnesses. Besides, it would appear that such a charge as that offered by defense counsel might well be considered as a comment on the evidence by the judge, which is prohibited by C.Cr.P. Art. 806.

Requested special charge No. 5 reads:

'In the deliberation, Gentlemen, you should be convinced of beyond a reasonable doubt in the veracity and truthfulness of the prosecuting witness and if it is impeached upon one or more issues or if it is unreasonable then you are at liberty to disregard part or all of the testimony as you become the sole and only judges of the law as given you by this court and of the facts and it is within your province to believer or disbelieve any witnesses's testimony that you hear on the witness stand and I charge you that you should take into consideration the interest that the accomplice has, the hope of reward that he may have, the hope of acquittal the anger and any other matters that may affect his credibility.'

Firstly, it was not suggested, so far as we can tell, that there was an accomplice to the crime charged, much less that an accomplice testified. Hence, that part of the requested charge was not pertinent. Secondly, the correct portions of the requested charge were fully covered by the general charge with greater clarity and...