State v. Faciane

• Citation: 99 So.2d 333,233 La. 1028
• Decision Date: 12 November 1957
• Docket Number: No. 43541,43541
• Parties: STATE of Louisiana v. Alfred Thomas FACIANE and Johnny McMiller.
• Court: Supreme Court of Louisiana

Page 333

99 So.2d 333

233 La. 1028

STATE of Louisiana v. Alfred Thomas FACIANE and Johnny McMiller.

No. 43541.

Supreme Court of Louisiana.

Nov. 12, 1957.

Rehearing Denied Jan. 9, 1958.

F. Irvin Dymond, New Orleans, Grover L. Covington, Kentwood, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Duncan S. Kemp, Dist. Atty., Amite, Leonard E. Yokum, Asst. Dist. Atty., Hammond, W. M. Dawkins, Asst. Dist. Atty., Denham Springs, for plaintiff-appellee.

FOURNET, Chief Justice.

The appellants, Alfred Thomas Faciane and Johnny McMiller, having been convicted on an indictment charging them jointly with Elias Cyprian¹ with violating Article 30 of the Louisiana Criminal Code (R.S. 14:30), in that they did 'wilfully and feloniously and of their malice afore-thought kill and murder Rudolph Berkley Hano,' and sentenced to die in the electric chair, prosecute this appeal, relying for the reversal thereon on a number of errors allegedly committed during the trial to which timely objection was made and bills perfected.²

According to the record Alfred Thomas Faciane, Johnny McMiller, and Elias Cyprian, together with Alfred's brother Milton³ went to Uneedas, Louisiana, to rob a country store owned and operated by Rudolph Hano, father of the deceased. During the course thereof, the boy was shot and killed by Alfred Faciane as he begged for his life, Cyprian, at the time, being outside in the get-away truck as a lookout while the other three entered the store.

The first bill of exceptions reserved on behalf of both appellants is based on the trial judge's denial of their motion for a change of venue.⁴ Counsel argued, both orally and in brief, that it was impossible for the accused to secure an unbiased jury and to have a fair and impartial trial inasmuch as public feeling against them was at a fever pitch over what counsel term in brief 'so horrible a crime,' requiring removal of the accused from the parish for safekeeping, and particularly so since the accused were members of the negroid race, the deceased a thirteen year old white boy, and the 'holdup' occurred in a white man's store. Counsel point to the large number of jurors allegedly excused for cause as evidence of the bias of the jury. It is contended, additionally, that the news coverage and articles running in the local paper were calculated to stir up wide-spread public resentment and antagonism.

The burden of establishing by legal evidence that applicant could not secure a fair trial in the parish where the indictment is laid rests with the applicant. 56 Am.Jur. 68, Section 68, verbo 'Venue;' State v. Rini, 153 La. 57, 95 So. 400, 404; and State v. Roberson, 159 La. 562, 105 So. 621. And the test is not, as claimed by counsel but, rather, as pointed out in the Rini case: 'Can there be secured with reasonable certainty from the body of such citizens, with the use of the safeguards of the law, a jury whose members will be able to try the case upon the law and evidence adduced on the trial, uninfluenced by what they may have heard of the matter, and who will give the accused the full benefit of any reasonable doubt which may arise from either the evidence or the lack of it?' See, also, State v. Ford, 37 La.Ann. 443. Furthermore, the power to grant a change of venue is to be exercised with caution and always rests in the sound discretion of the trial judge whose ruling denying the motion is not reversible error and will not be disturbed unless it affirmatively appears from the evidence that his ruling was unfair and a clear abuse of judicial discretion. See, State v. Powell, 109 La. 727, 33 So. 748; State v. Roberson, 159 La. 562, 105 So. 621; State v. Collier, 161 La. 856, 109 So. 516; State v. Washington, 207 La. 849, 22 So.2d 193; State v. Pearson, 224 La. 393, 69 So.2d 512; State v. Johnson, 226 La. 30, 74 So.2d 402; State v. Swails, 226 La. 441, 76 So.2d 523, certiorari denied 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765, and the authorities therein cited.

A review of the record discloses no abuse of discretion on the part of the trial judge in refusing the change of venue. The defendant Faciane totally failed to carry the burden of establishing local prejudice, as did McMiller, for we find no evidence of any probative value to support their motions. In an effort to establish this claim five witnesses from various parts of the parish were produced--a carpenter, cafe owner, restaurant worker, service station attendant, and optometrist--and while they testified they heard the crime discussed in a general way, they knew of no antagonistic feelings or prejudice against the defendants, all stating unequivocally they felt the accused could receive a fair and impartial trial in the parish. Indeed, they all testified unhesitatingly they could personally serve on such a jury if called and render a just verdict. Counsel representing Faciane, apparently realizing the failure to carry the burden of establishing local prejudice has not, in argument, either orally or in brief, mentioned the testimony of these five defense witnesses. Instead, his attempt to have this ruling reversed is limited to an effort to make light of the testimony offered on behalf of the state,⁵ asserting it evidences prejudice on its face since 'such complacence about the commission of so horrible a crime * * * could not be genuine.'

It is true, as contended by counsel, that the accused was placed in a jail in Baton Rouge immediately after the commission of the offense, but we find the record fully corroborates the trial judge's per curiam wherein he advises that they only remained at 'Baton Rouge from March 26th until April 25th when they were arraigned. Since that time they have been kept in the parish prison at Amite with no hostile demonstrations of any kind and no attempt at any mob violence. The deputy sheriff testified that this was a usual procedure for men charged with capital offenses because of safety reasons. * * * The trial lasted a week and during that time there was no incident of violence or prejudice in the court room or on the outside. The jury was obtained without calling more than the normal number of talesmen for such a case.'

With respect to the news coverage, 'Newspaper articles * * * are not in themselves sufficient evidence of the existence of such prejudice as will justify a change, unless public hostility has been so aroused thereby that it is improbable that a fair trial can be had.' 16 Corpus Juris 206, Section 309; 22 C.J.S. Criminal Law § 196. As above demonstrated, the appellants failed to establish that such public hostility had been aroused. See, also, State v. Rini, 153 La. 57, 95 So. 400; State v. Roberson, 159 La. 562, 105 So. 621; and State v. Swails, 226 La. 441, 76 So.2d 523.

Bills of Exceptions Nos. 2, 3, 4, 5, 6, and 12, reserved by the appellant Faciane, embrace matters growing out of and connected with the appointment of a lunacy commission and will be treated together.

It appears the trial judge, on June 14, 1956, some three months after the commission of the crime, appointed a lunacy commission⁶ composed of the parish coroner Dr. L. L. Ricks, and Drs. A. L. Lewis and C. E. Sturm--the former is a general practitioner in the locality and the latter was at the time clinical director and acting superintendent of the East Louisiana State Hospital for the mentally ill--to inquire into the mental condition of the accused at the present time and also at the time of the commission of the crime. He ordered them to report their findings within 30 days. On July 12, 1956, the commission addressed a report to the judge stating, in effect, that in their opinion the accused was normal mentally, but, in an abundance of precaution, and in order that he might be given every benefit of the doubt, recommended that he be sent to the Louisiana State Hospital for the mentally ill for observation and diagnosis for a period not to exceed 30 days.

Accordingly, the accused, on the order of the judge, was committed to the hospital for observation, examination, and tests by the medical staff, and, on August 2, 1956, Dr. Sturm, as clinical director, and Dr. C. J. Addison, as senior psychiatrist and criminologist of the hospital, addressed a letter to the judge in which they stated: 'After examinations, tests, observation and interviews he (Faciane) was presented to our Medical Staff on August 2, 1956, and the staff agreed that this man is not insane at this time, that this man knows the difference between right and wrong, that he knows the usual and natural consequences of his words and acts and that he is able to assist counsel in his defense.' (Brackets added.)

The trial judge then set September 6, 1956, as the day on which he would conduct the hearing to determine the present mental capacity of the accused. On that day Dr. Lewis, a member of the commission, was absent, and the hearing was, upon motion of counsel, continued to October 4, the judge, in counsel's presence and in open court, ordering that summons issue commanding all three members of the commission and also Dr. Addison to be present on that day, counsel representing Faciane then stating in open court he would bring his own witnesses with him at that time.

Bill of Exceptions No. 2 was reserved when the trial judge overruled defense motion to have the testimony of Dr. Lewis stricken from the record and disregarded during the October 4 hearing and that no further testimony be taken, contending the accused had not been kept under observation by the commission and it had not filed a report as required by R.S. 15:269.⁷ Predicated on this same contention is Bill of Exceptions No. 3, reserved when Dr. Sturm, another member of the commission, was allowed to testify over defense objection, and Bill of Exceptions No. 12, reserved when these same two witnesses were allowed to testify with respect to Faciane's mental capacity at the time of the commission of the crime...