State v. Freeman

• Decision Date: 20 January 1964
• Docket Number: No. 46768,46768
• Citation: 245 La. 665,160 So.2d 571
• Parties: STATE of Louisiana v. Harlon FREEMAN and Troy Freeman.
• Court: Louisiana Supreme Court

Page 571

160 So.2d 571

245 La. 665

STATE of Louisiana v. Harlon FREEMAN and Troy Freeman.

No. 46768.

Supreme Court of Louisiana.

Jan. 20, 1964.

Rehearing Not Considered; Not Timely Filed.

John S. Stephens, Coushatta, for defendants-appellants.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. Reuel Boone, Dist. Atty., Jack E. Burgess, Asst. Dist. Atty., for appellee.

HAMITER, Justice.

Harlon and Troy Freeman were tried jointly by a jury, convicted, and each was sentenced to serve three years at hard labor in the state penitentiary, all for allegedly burglarizing a camp building located in DeSoto Parish and owned by one Ralph Shelton. On this appeal they rely on seven bills of exceptions to obtain a reversal of the convictions and sentences.

Upon the court's refusal to grant a continuance bill Number 1 was reserved. The defendants recognize and concede in their briefs submitted here that 'the jurisprudence is replete with cases to the effect' that the granting or denying of a continuance 'is within the sound discretion of the Trial Court and will not be reversed unless manifestly erroneous.' However, they argue that the ruling was an abuse of the judge's discretion, and that it was prejudicial to them.

The record reflects that the bill of information was filed on February 27, 1963, on which day the defendants (assisted by court appointed counsel) appeared, waived arraignment, and pleaded not guilty. The case was then fixed for trial on March 19, 1963. Meanwhile, on March 16, 1963, the motion for a continuance was filed by an employed, and the accuseds' present, counsel.

In this court such counsel asserts only that, since he was not retained until March 8, 1963, there was insufficient time to permit a proper investigation of the charge. But this is merely a conclusion of the pleader; the record contains no evidence to support the assertion. Under these circumstances we think that the period of eleven days, which counsel had, was ample to prepare the defenses. See State v. Gilliard, 143 La. 604, 78 So. 978, State v. Leahy, 175 La. 659, 144 So. 138, State v. Stone, 189 La. 567, 180 So. 411, State v. Thomas, 214 La. 499, 38 So.2d 149, and State v. McAllister, 244 La. 42, 150 So.2d 557. Accordingly, we are unable to hold that the judge abused his discretion.

Bill Number 2 has been abandoned.

When the court overruled a defense motion to have all of the testimony adduced at the trial recorded and transcribed at the expense of the state bill Number 3 was taken. The accuseds urge that such holding was contrary to the rulings of the United States Supreme Court in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269, and Draper v. State of Washington et al., 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899.

For several reasons there is no merit in the bill. Firstly, we do not understand that the cited decisions hold that a defendant in every case is entitled to have all of the testimony recorded and transcribed. According to them there should be provided only so much of the evidence as is necessary to properly prepare his appeal. As we noted in State v. Daley, 243 La. 760, 146 So.2d 798: '* * * Our jurisdiction in criminal cases extends to questions of law alone * * *. Hence, our review in criminal cases being restricted to those matters in which some error of law is claimed to have been committed during the trial, appellant has not been prejudiced in any respect by reason of the judge's ruling for, even if the entire testimony had been reported and transcribed, we could not consider it in the absence of a bill of exceptions pointing to some alleged error of law in the rulings of the court, the circumstances of which could only be shown or explained by the testimony. * * *' Here, all of the testimony pertinent to the defendants' various bills of exceptions is contained in the record; and they have not urged that there was no evidence to support the convictions. Consequently, the recording and transcription of all of the testimony would have been of no value to them.

Secondly, LRS 13:4529 provides that if a person is unable to pay costs in a criminal case he shall be entitled to prosecute an appeal on a showing made by His affidavit that he is unable to pay said costs, and also by an affidavit of a disinterested person 'other than his counsel' who knows the accused and his financial condition and believes that he is unable to pay the costs. No such affidavits were presented in the instant case. Of course, the motion itself does allege the inability of defendants to pay; but it is verified only by defense counsel and then on information and belief.

Bill Number 4 was reserved when the trial judge permitted the introduction of the defendants' confessions (all of the testimony relating to this issue is in the record before us). Both officers who had had contact with the accuseds stated that they made no threats, promises or inducements in order to obtain the confessions. The defendants testified to the contrary. After considering all of the evidence the judge permitted the introduction of the confessions, he stating that 'there were no substantial promises that would have induced these men to make a confession and that there were...