State v. Deschamps

• Decision Date: 01 December 1889
• Docket Number: 10,414
• Citation: 41 La.Ann. 1051,7 So. 133
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. ETIENNE DESCHAMPS

7 So. 133

41 La.Ann. 1051

THE STATE OF LOUISIANA v. ETIENNE DESCHAMPS

No. 10,414

Supreme Court of Louisiana

December 1, 1889

Rehearing refused.

APPEAL from the Criminal District Court for the Parish of Orleans Marr, J.

Walter H. Rogers, Attorney General, for the State, Appellee.

James H. Dowling and McMahon & Pratt, for Defendant and Appellant.

BERMUDEZ C.J. MCENERY, J., dissents. FENNER, J., concurs.

OPINION

BERMUDEZ, C.J.

The defendant was prosecuted for murder, tried, convicted and sentenced to death.

On appeal, he complains that the District Judge erred:

1. In refusing a continuance.

2. In hearing an incompetent witness.

3. In admitting certain testimony.

4. In giving an improper charge.

The record contains three bills and a motion for a new trial to the refusal of which, a bill was taken.

The following is an extract from the statement of the trial Judge, contained in the bill taken to his refusal to grant a continuance.

"On the 29th April, when the accused was brought to the Bar for trial, he informed the Court that he had no counsel and asked the Court to appoint counsel for him, such as the Court might select.

"After positive refusal by some half a dozen members of the Bar the appointment was made and the case was continued to 1st May."

On that day, the counsel thus appointed made affidavit stating "that he is entitled to an indulgence from the Honorable Court, of a reasonable time in which to prepare a suitable and valid defence, which counsel believes there is in this case; that he has not had sufficient time to do so, as less than forty-eight hours have intervened since his assignment as counsel and the calling of the accused to the Bar of the Court for trial; that he has been altogether unable to prepare the case, involving, as it does, the life of a human being, embracing points of law and fact, requiring much study and research, which he has been unable to devote to it."

When the case was called, counsel moved for a continuance, based on the affidavit made by him, which was refused by the Court.

For so doing, the trial judge states in the bill taken to his ruling:

"The time allowed, I considered sufficient to enable counsel to ascertain what defence, if any there was, and to obtain from the accused the names of witnesses by whom any exculpatory facts, or matters of defence could be proved, and such information might have been ground for affidavit and motion for continuance.

"The counsel for accused in answer to inquiry by the Court said, he would require about a month to prepare suitable defence.

"As the Court will be in vacation from 1st June to 1st September, this simply meant a continuance for four months.

"The accused never in any way intimated to the Court that he had any defence.

"He never mentioned any fact which he expected, or desired to prove; nor did he ever ask for delay to procure testimony, or to have witnesses in his behalf, summoned.

"I considered the affidavit insufficient, in that, it does not indicate any line of defence. It does not mention any fact to be proven, nor does it ask for delay, to have witnesses summoned on behalf of the accused. On such showing, I did not consider that I would be justified in granting a continuance."

The question here presented is: Whether, under the showing made by the counsel appointed to the accused, by the Court, a continuance ought or ought not to have been granted.

When arraigned, the accused pleaded not guilty and, when called upon to stand his trial on the 29th of April, he announced that he had no counsel and asked that one be appointed to him. The Court at once assigned counsel and continued the case to the day after the next, May 1st.

There is nothing to show when the counsel appointed, was informed or notified of his assignment and when he accepted the same, except his appearance on the day fixed for the trial, when he made the affidavit and motion for a continuance.

Supposing, however, that he knew of the appointment and accepted it at the very moment that it was made, it is evident, that a very short time intervened between that of the appointment and that when the case was called for trial, surely less than forty-eight hours.

Now, on that day, 1st May, the counsel, a sworn officer of the Court, in whom the Judge placed reliance, to whom the life of the accused had been entrusted, who had no personal interest to serve, nothing to gain by delaying a trial, makes affidavit, that he is entitled to the indulgence of the Court for a reasonable time, in which to prepare a suitable and valid defence, which he believes there is in the case; that he has not had sufficient time to do so, as less than forty-eight hours have intervened; that he has been altogether unable to prepare the case which involves questions of fact and law, which require much study and research, which he has been unable to devote to it.

The affidavit should have been taken for true and, if true, surely was sufficient authority, under the circumstances, to grant a continuance for a reasonable time.

No Court can expect from counsel, appointed by it, to defend an accused in a capital case, that they should assume the great responsibility imposed upon them, without being allowed a reasonable time to inquire into the facts and the law, -- should they require it, -- and no Court should compel such counsel to proceed with the defence of such a case, under such circumstances, when the counsel, under his solemn oath, declares that he believes there is a defence to be made; but that he has not had sufficient time to prepare it, when the time intervening between the time of appointment and that of the trial is less than forty-eight hours.

We have been shown no precedent and we know of none, in which a continuance for a reasonable time, made for the first time in a capital case, under such circumstances, has not been granted

In State vs. Ferris, 16 Ann. 425, which was a murder case, the then Court said in reference to accused in criminal cases:

"The law securing to them the assistance of counsel did not intend to extend a barren right, for of what avail would be the principle of counsel" * * * if, on the spur of the moment, without an opportunity of studying the case, the former should be compelled to enter upon an investigation of the cause.

In the case of State vs. Horn, 34 Ann. 100, which was a penitentiary case only, counsel appointed to the accused having made affidavit that he had not time to prepare a defence and having retired on the overruling of his motion, and the accused having made affidavit for the allowance of time to prepare, and the Court having refused a continuance, this Court considered the showing sufficient, quashed the verdict and remanded the case.

In State vs. Boyd, 37 Ann. 781, which was a capital case, the Court had appointed two members of the Bar to defend the accused, allowing them three hours for preparation. At the expiration of that time they made affidavit and a motion for further delay, as they had not had sufficient time to prepare the defence.

This Court there held that, in a capital case, under such a showing, the trial judge ought to have allowed time and that the ruling was erroneous.

In State vs. Simpson, 38 Ann. 24, which involved a penitentiary offense only, the Court said, that the right to be heard by counsel, guaranteed by the Constitution to the accused, was not an empty formality, but an inestimable privilege and that counsel should be allowed reasonable time to prepare the defence. It ruled accordingly.

In State vs. Brooks, 39 Ann. 241, in which the penalty was no more than hard labor, this Court, on an affidavit of the accused, fortified by that of his counsel, asking for time to prepare, reiterated the language, with approbation, found in the 16th Ann. p. 424.

In all these prosecutions, the verdicts were quashed and the cases remanded.

The rulings in State vs. Wilson, 33 Ann. 261; State vs. Doyle, 36 Ann. 91; in State vs. Johnson, 36 Ann. 852; have no real bearings upon the question under consideration, as the facts are materially dissimilar.

In the Wilson case the affidavit was not made by the appointed attorney. It did not state that there was a valid defence, that the case involved questions of fact and law which required much study and research and that counsel needed a reasonable time to prepare such defence. In the instant case, the affidavit is made by the assigned counsel, who distinctly states these special causes for a continuance. The oath of the attorney was entitled to much weight, as he was the best judge of the condition of the case he was called on to defend, of his readiness to do so, as the prosecution was for a capital offence and the application was made for the first time, and had not unnecessary delay for its purpose.

In the Boyle case, there was no complaint. The accused had not asked for the appointment of counsel, had not prayed for a continuance owing to the absence of his counsel, and the case had proceeded regularly without the aid of counsel.

In the case of Johnson, the accused had asked a continuance on account of the absence of his counsel, which the Court declined, assigning counsel to him, who did not make affidavit that he had not had and required time to prepare, and who invoked every technical defence which legal ingenuity could suggest.

In the instant case, the counsel appointed to defend the accused, made affidavit and asked time to prepare, under circumstances and in a form which entitled him and the accused to a reasonable delay and charged injury to the accused in the motion for a new trial.

The reasons assigned by the district judge in justification of his refusal are lengthy. In a portion of his...