State v. Garner

• Decision Date: 09 November 1959
• Docket Number: No. 44643,44643
• Citation: 238 La. 563,115 So.2d 855
• Parties: STATE of Louisiana v. Robert GARNER.
• Court: Louisiana Supreme Court

Page 855

115 So.2d 855

238 La. 563

STATE of Louisiana v. Robert GARNER.

No. 44643.

Supreme Court of Louisiana.

Nov. 9, 1959.

Rehearing Denied Dec. 14, 1959.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard A. Dowling, Dist. Atty., Benjamin E. Smith, Asst. Dist. Atty., New Orleans, for appellant.

Sam Monk Zelden, Frank Shea, New Orleans, for appellee.

HAMLIN, Justice.

Robert Garner was charged by bill of indictment¹ with the unlawful killing (a violation of LSA-R.S. 14:31--Manslaughter) of George Carson, alias Junior Carson, on December 6, 1958. In answer to defendant's motion for a bill of particulars, the State asserted:

'The District Attorney intends to pursue on the trial of this matter the law contained in Section 31, Title 14, subsection 2(a) thereof and that the specific crime in which the offender and defendant herein was engaged at the time of the homicide was a felony, towit: Attempted Murder.'

On April 3, 1959, shortly after the filing of the above answer, the defendant filed a demurrer and motion to quash, in which he averred that the indictment was not properly founded in law and was null and void and of no legal effect. He asserted that within the purview of law it was not legally possible to charge him in the manner and with the crime as set forth in the indictment. He further stated that he was charged in the same court with the attempted murder of James Robinson (a violation of LSA-R.S. 14:27(3)) by use of a knife, whereas, the instant charge concerned itself with the death by pistol shot of one George Carson.

The State supplemented its answer to the motion for a bill of particulars by a stipulation of facts. This stipulation is not in the record, but the minutes of the trial court state:

'* * * After hearing arguments by counsel for the defendant and the state, and After a stipulation of facts, supplementing the state's answer to the Motion for a Bill of Particulars was dictated into the record by Mr. Smith the Court took the matter under advisement. * * *' (Emphasis ours.)

The trial judge sustained the motion to quash the indictment and discharged the defendant. The State reserved a bill of exceptions, which is the subject of this appeal. In its motion for appeal, the State alleged:

'That the bill of indictment returned by the Orleans Parish Grand Jury and the facts as set forth in the said bill of indictment, the application for particulars and the original And supplemental answer to the application for particulars all show that a crime cognizable under the law of the State of Louisiana has been committed and properly charged in this Court;' (Emphasis ours.)

The trial judge's per curiam to the bill of exceptions sets forth the State's stipulation of facts supplementing its answer to the motion for a bill of particulars. Both, counsel for the State and for the defendant, stated to this Court during argument that they accepted the facts set forth in said per curiam for the purpose of their argument only. They further expressed to this Court a request for a ruling squarely on the issue as to whether the indictment as supplemented charged an offense cognizable under the law of the State of Louisiana.

A determination must first be made as to whether this Court can and should refer to the recitation of facts in the trial judge's per curiam.

We must keep in mind that the law abhors a multiplicity of suits; the modern-day tendency is to relax the technical rules of pleading in order to arrive at the truth and dispose of a case in an expeditious manner. Todt v. Todt, 237 La. 168, 110 So.2d 566; Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169; Riggin v. Watson-Aven Ice Cream Co., 192 La. 469, 188 So. 144; Olivedell Planting Co. v. Town of Lake Providence, 209 La. 898, 25 So.2d 735.

We conclude that in order to avoid a multiplicity of criminal proceedings and to dispose of this matter expeditiously and without delay, we should consider the instant indictment along with the answer to the motion for a bill of particulars and the stipulation of facts referred to in the minutes, supra, and recited in the trial judge's per curiam. Cf., State v. Bessar, 213 La. 299, 34 So.2d 785; State v. Picou, 236 La. 421, 107 So.2d 691. Since there has been an agreement between counsel, the defendant will suffer no prejudice.

The per curiam of the trial judge sets forth the following:

'The bill of particulars herein specifies that the state is prosecuting the defendant under L.R.S. 14:31(2)(a), and that the specific crime in which the defendant herein was engaged at the time of the homicide was a felony, to wit: Attempted Murder. The bill of particulars (referring to the stipulation of facts dictated into the record by Mr. Smith) further specifies that after an altercation in the saloon with the bartender, that the defendant, Robert Garner, left the saloon and returned later with a knife in his hand, attacked and attempted to kill one Robinson, the bartender. The bartender, in self defense, produced a pistol which he fired and the shot killed the deceased, George Carson, alias Junior Carson.

'Repeating: The deceased was killed by a shot from a pistol fired by the bartender who was shooting at the defendant, Robert Garner, in self defense. So that the defendant is not the actual and immediate killer of the deceased.'

Manslaughter is defined in LSA-R.S. 14:31(2)(a) as:

'(2) A homicide committed, without any intent to cause death or great bodily harm.

'(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30, or of any intentional misdemeanor directly affecting the person;'

LSA-R.S. 14:30 recites:

'Murder is the killing of a human being.

'(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

'(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated rape, armed robbery, or simple robbery, even though he has no intent to kill.'

The general attempt statute (LSA-R.S. 14:27) provides:

'Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

'An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.'

Counsel for the State alleges in brief that the theory of the prosecution is as follows:

'* * * the theory of the bill of indictment returned by the Grand Jury against the defendant, was that the defendant in the perpetration of a felony of attempted murder * * * set into motion a train or series of events the natural cause of which was the death of the decedent Robinson, and that between the time of the putting into motion of the train of events resulting in the death, and the death, of deceased there was no third intervening, independent force which manifested itself so as to divest the defendant of his criminal responsibility. It should be noted that it is reasonable to assume that the defendant herein Garner knew or should have known one of the probable consequences of his attempted murder of the bartender would be that the bartender would attempt to defend his own life and that in doing so he would place in danger and in jeopardy every other person in that barroom, including the customers who stood nearby watching the argument.'

The contention of the State, to the effect tht if A attacks B and B in self-defense draws a pistol at A but accidently shoots and kills C, an innocent bystander, criminal liability is imposed on A for the death of C, is sui generis to the jurisprudence of Louisiana. Our determination must be one of finding whether or not our law imposes such liability.

An attempt is a separate but lesser grade of the intended crime. LSA-R.S. 14:27, supra; State v. Broadnax, 216 La. 1003, 45 So.2d 604; State v. Roberts, 213 La. 559, 35 So.2d 216; State v. Espinosa, 223 La. 520, 66 So.2d 323; State v. Johnson, 228 La. 317, 82 So.2d 24. It is also provided, in LSA-R.S. 15:386, that the only responsive verdicts which may be rendered where the indictment charges Attempted Murder are: 'Guilty as charged;' 'Guilty of attempted manslaughter;' and 'Not Guilty.' The State is therefore correct in its first contention that 'Attempted Murder' is not included or enumerated in LSA-R.S. 14:30 (Murder).

In contending that the defendant is an offender within the purview of LSA-R.S. 14:31(2)(a), supra, engaged in the attempted murder of Robinson when Robinson accidently shot Carson, the State relies principally on the case of Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183.

The facts in the above cited case are to the effect that David Almeida, Ed Hough, and James Smith were confederates in committing armed robbery of a market. The proprietor's cries of 'Hold Up' brought police assistance and during a skirmish and attempted get away an off duty policeman, who happened to be at the scene, was shot and killed. Hough pleaded guilty to the murder and was sentenced to death in the electric chair. Almeida was then charged with murder. His counsel cited certain facts which they contended raised a strong inference that the fatal shot was fired mistakenly by a policeman. On appeal from his conviction and sentence to death, Almeida contended that the trial judge erred in refusing to charge the jury as follows: 'If you find that the bullet which was fired and killed the deceased was not fired by any one of the three men charged with perpetrating the robbery in question, you cannot convict the...