State v. Elmore
| Decision Date | 07 July 1933 |
| Docket Number | 32435 |
| Citation | 177 La. 877,149 So. 507 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. ELMORE |
Appeal from Fourth Judicial District Court, Parish of Ouachita; J T. Shell, Judge.
Orville Elmore was convicted of manslaughter, and he appeals.
Conviction annulled, and case remanded.
George Wesley Smith, of Rayville, and Joseph S. Guerriero, K. Ann Dodge, and Brunswig Sholars, all of Monroe, for appellant.
G. L Porterie, Atty. Gen., James O'Connor, Asst. Atty. Gen Frank W. Hawthorne, Dist. Atty., of Bostrop, and James O'Niell, Sp. Asst. to Atty. Gen., for the State.
OPINION
Orville Elmore, Mrs. Frank Manley, and Roy Smith were jointly indicted for the murder of Ted Riser. Severances were granted to Mrs. Manley and Smith, and Elmore alone was placed on trial. When he was first tried, the jury being unable to agree, a mistrial was ordered. On his second trial defendant was found guilty of manslaughter, and under the conviction was sentenced to imprisonment at hard labor for a term of not less than thirteen and one-third years nor more than twenty years. From his conviction and sentence defendant prosecutes this appeal.
The only question presented by the appeal is whether the trial judge erred in admitting an alleged confession over defendant's objection that the district attorney in his opening statement had failed to inform the jury and the defendant that he expected to offer and prove a confession by defendant.
The district attorney did not inform the jury in his opening statement that he intended to offer in evidence a confession made by the defendant Orville Elmore that he was guilty of the crime charged. But he did inform the jury that Orville Elmore, Roy Smith, and Mrs. Frank Manley had conspired to rob the deceased Ted Riser. And the district attorney took the position, which was sustained by the ruling of the trial judge, that Elmore's statement to the two police officers was exculpatory and not a confession.
The officers testified that Elmore, the defendant, admitted or confessed to them that Roy Smith and he went down to Riser's place for the purpose of robbing him of money and diamonds, and that in the argument or scuffle which ensued Smith shot and killed Riser.
It appears from defendant's allegations in his motion for a new trial, which were not controverted, that upon the first trial the conspiracy between Roy Smith and Orville Elmore to rob Ted Riser was not established, except by the uncorroborated testimony of Smith, which was denied under oath by Elmore. And the clear purpose of the state in placing the two police officers on the stand in the second trial was to have them corroborate Smith's testimony by proving that Elmore had confessed to them that he and Smith conspired to rob Riser, and that in the struggle resulting from the attempt to carry out the conspiracy Riser was killed.
The district attorney contends defendant's alleged statement was not a confession but a denial of guilt. Nevertheless the statement was offered in evidence after the state had laid the foundation for its admission as a confession.
It is true, the statement as testified to by the officers contained a denial of the actual shooting of Riser by the defendant, but it also contained an admission of the conspiracy to rob him. And the district attorney declares that the statement was offered for the sole purpose of proving the conspiracy.
But, if Elmore confessed to the conspiracy to rob Riser, and Riser was killed in the effort to rob him by the conspirators, it makes no difference which one of the conspirators actually did the killing, all were guilty of the homicide; and the trial judge expressly so charged.
If it be true that the testimony of the police officers did not prove any confession made by defendant, why was it offered in evidence? The reason assigned by the state for its introduction is not sound. Defendant was not on trial for robbery, or assault with intent to rob, or for conspiracy to commit robbery. He was on trial for murder. The testimony was not offered for the purpose of securing defendant's acquittal, but it was offered for no other purpose than to secure defendant's conviction of the crime with which he was charged, namely, murder.
While the district attorney and the trial judge designate the statement made to...
To continue reading
Request your trial
-
State v. Himel
...v. Silsby, 176 La. 727, 146 So. 684 (majority--to make the district attorney show his hand as to the State's evidence); State v. Elmore, 177 La. 877, 149 So. 507 (to make the district attorney show his hand to the defendant and to advise the jury); State v. Garrity, 178 La. 541, 152 So. 77 ......
-
State v. Clark, 43131
...v. Nahoum, 172 La. 83, 133 So. 370; State v. Ducre, 173 La. 438, 137 So 745; State v. Silsby, 176 La. 727, 146 So. 684; State v. Elmore, 177 La. 877, 149 So. 507; State v. Garrity, 178 La. 541, 152 So. 77; State v. Bishop, 179 La. 378, 154 So. 30; State v. Sharbino, 194 La. 709, 194 So. 756......
-
State v. Barton
...v. Nahoum, 172 La. 83, 133 So. 370; State v. Ducre, 173 La. 438, 137 So. 745; State v. Silsby, 176 La. 727, 146 So. 684; State v. Elmore, 177 La. 877, 149 So. 507; State Garrity, 178 La. 541, 152 So. 77; State v. Bishop, 179 La. 378, 154 So. 30; State v. Sharbino, 194 La. 709, 194 So. 756. ......
-
State v. Jones
...v. Nahoum, 172 La. 83, 133 So. 370; State v. Ducre, 173 La. 438, 137 So. 745; State v. Silsby, 176 La. 727, 146 So. 684; State v. Elmore, 177 La. 877, 149 So. 507; State v. Garrity, 178 La. 541, 152 So. 77; State v. Bishop, 179 La. 378, 154 So. 30; State v. Sharbino, 194 La. 709, 194 So. 75......