State v. Evans
| Decision Date | 07 November 1966 |
| Docket Number | No. 48163,48163 |
| Citation | 192 So.2d 103,249 La. 861 |
| Parties | STATE of Louisiana v. Daryl EVANS and Bernard Butler. |
| Court | Louisiana Supreme Court |
F. Irvin Dymond, G. Wray Gill, George M. Leppert, New Orleans, for appellants.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.
The instant appeal is by Daryl Evans and Bernard Butler who were convicted of the crime of murder, under the felony-murder doctrine, and were sentenced to death by electrocution. Allegedly, the offense committed, which occurred in the City of New Orleans on the night of June 21, 1963, was the fatal shooting of one Norris J. Rabalais, a New Orleans Public Service bus operator, during an attempted armed robbery of such person by the defendants.
Following the trial thirty-nine bills of exceptions were perfected. However, not all of them are urged on this appeal.
Defendants' presentation here, in brief and by oral argument, was not made (as is customary) on the basis of the perfected bills. Rather, their counsel set forth and argued twelve 'specifications of error'. We prefer to and shall discuss the 'specifications' according to the individual bills of exceptions urged, some which may be grouped for that purpose.
Bills of Exceptions Nos. 6, 14, 21 and 23.
These bills were taken to the court's permitting two witnesses, Glenda Dale Jenkins and Clyde Coombs, to testify as to the commission by these defendants of a prior armed robbery of another bus operator at a location in the vicinity of the instant shooting, and to their attempted armed robberies of several places of business in the general locale of defendants' residences.
Generally evidence of other crimes, even those similar in nature, is not admissible to prove the offense charged. However, there are well recognized exceptions to this rule, one being that such evidence is admissible to prove intent when it is a necessary ingredient of the crime charged. Thus, in LRS 15:445 and 446 it is stated: 'In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.' LRS 15:445. 'When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.' LRS 15:446. See also State v. Wagner, 229 La. 223, 85 So.2d 272 and State v. Allen, 243 La. 698, 146 So.2d 407.
Inasmuch as the charge of murder was made herein under the felony-murder doctrine, it was not necessary to prove intent as to the homicide. However, it was required of the state to establish the armed robbery intent, particularly since the instant attempted robbery had not actually been consummated but was frustrated by the operator's refusing to hand over the money. It was incumbent on the state to show, in other words, that the killing occurred while the defendants were attempting an armed robbery. Therefore, evidence of the other crimes referred to, they having been similar in nature, indicative of a pattern, and reasonably close in point of time to the crime charged, were admissible to disclose such intent.
These bills are not well founded.
Bills of Exceptions Nos. 7, 10 and 12.
Bills Nos. 7 and 10 were reserved when the trial court refused to excuse for cause, on motion of the defendants, two prospective jurors. No. 12 was taken when a third proposed juror ws excused for cause on motion by the state and over a defense objection.
This court has heretofore said: State v. Weston, 232 La. 766, 95 So.2d 305. See also State v. Rogers, 241 La. 841, 132 So.2d 819.
The mentioned bill No. 7 relates to the court's refusal to excuse prospective juror Alvin Weddle for cause. Weddle was a long-time New Orleans Public Service employee, and it was the contention of the defendants that because of this fact he might be embarrassed and could not give the defendants a fair and impartial trial. But the testimony elicited on the voir dire does not reveal that he was even a bus or car operator. Nor does it show that he knew the deceased or any of the latter's former acquaintances.
Moreover, the answers given by Weddle on his voir dire indicated that in his opinion his employment would not affect in any way his 'activities as a juror'. And, as pointed out in the trial court's per curiam, there was no evidence to show that the fact of the employment would influence his verdict. We cannot conclude, therefore, that the trial judge abused his discretion in denying the challenge for cause as to this juror.
Likewise, our review of the testimony of prospective juror Walter Lundin, Jr., to whom bill No. 10 pertains, convinces us that the court correctly denied the challenge of him for cause. Although he expressed his opinion as to the offensive nature of the crime charged (based on information gained through newspaper accounts published at the time of its occurrence), he clearly and emphatically stated that he had no preconceived opinion as to any connection which these two defendants might have had with it or as to their guilt or innocence. Lundin particularly noted that he remembered no names mentioned in the newspaper articles and, on being carefully questioned by the judge, he answered unqualifiedly that he thought he could 'sit in judgment in this case and render a verdict according to the law and evidence.'
Also, we are of the opinion that the trial judge properly sustained the state's challenge for cause of prospective juror Herbert Hackett, a teacher in the Orleans Parish schools, which is involved in bill No. 12. The following quoted portion of his testimony, given when being examined on his voir dire, clearly showed that he was prejudiced and unable to render a fair and impartial verdict:
'Q. Gentlemen, is there any reason that you can give that you cannot give these defendants, either because of the nature of the charge or for any other reason, a fair and impartial trial?
A. Well, because of my relationship with children, I feel I would be a little partial to this situation because of the possible ages of the persons concerned.
Q. What is your job with the school board, just as a teacher or are you a coach?
A. I am a teacher and I have a basketball team, the Boy Scouts and things like that.
Q. Do you feel that because of your work with young men and boys and because of the age or apparent youth of the defendants that this would hamper your judgment in the matter?
A. I do.'
Defendants contend that later testimony showed that he meant only that he had an unusual amount of compassion for boys of defendants' age (at the time of the offense they were sixteen years old). We think otherwise. It was only in response to defense counsel's questioning that the notion of compassion by Hackett was injected. Nowhere did he deny or qualify his original statement that he felt that his work and his dealings with boys would hamper his judgment in the matter. Besides, as pointed out by the trial judge, the nature of defendants' right on the voir dire is not one to select but one to reject. See State v. Wilson, 240 La. 1087, 127 So.2d 158 and the cases cited therein. Hence, the bill is without merit.
This bill was reserved to the court's permitting a police officer to testify over a defense objection as to information he obtained, when he arrived at the scene of the crime, from the deceased who lay mortally wounded in the bus. The basis for the objection was that 'this man (the operator) was in such condition from a physical standpoint that it was extremely doubtful that he knew what he was saying or indicating.'
In his per curiam to this bill the trial judge observed that the ground for the objection was We think his ruling was correct.
However, in this court the defendants apparently have abandoned such ground; and they now urge, for the first time, that the testimony was improperly admitted as a dying declaration because there was no evidence to show that the deceased knew he was dying or that he firmly believed he was dying. This contention comes too late. Had it been properly made in the district court the prosecution, if it was using the statement as a dying declaration, would have had the opportunity to lay the foundation for it, as such.
Bills of Exceptions Nos. 20 and 21.
These bills were taken when the trial court permitted the state's witness, Glenda Dale Jenkins, a friend of the defendants, to testify as to 'inculpatory statements' made to her by the defendant Butler. The statements related allegedly to a prior bus holdup, to two other attempted armed robberies, and to the robbery out of which the instant charge arose. The objections to this evidence were that (1) it was improper to permit introduction of evidence of offenses other than the one with which the defendants were charged, and (2) inasmuch as the statements were in...
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