State v. Gayton
| Decision Date | 10 November 1952 |
| Docket Number | No. 40838,40838 |
| Citation | 61 So.2d 890,221 La. 1115 |
| Parties | STATE v. GAYTON. |
| Court | Louisiana Supreme Court |
R. A. Fraser, Jr., E. L. Edwards, Jr., and J. S. Pickett, Many, for appellant.
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and J. Reuel Boone, Dist. Atty., Many, for appellee.
The defendant is appealing from his conviction of attempt to murder and sentence to twenty years in the State Penitentiary at hard labor. During his trial, he reserved 12 bills of exceptions, 11 of which are urged here as grounds for a new trial.1
The first and second bills relate to defendant's claim of deafness allegedly rendering him incapable of understanding the nature of the proceedings against him and of assisting his counsel in his defense. The first of these was taken to the overruling of his objection to arraignment because of his claimed inability to hear the charge and the other was reserved when the judge refused to appoint experts to determine the extent of his deafness.
In answer to his contentions, the judge states in his per curiam that, at the time of arraignment, defendant feigned complete deafness; that nevertheless he (the judge) wrote on a piece of blank paper the charge against defendant, who had stated that he was able to read, requesting him in writing to state whether he pleaded guilty or not guilty and that, when this was presented to defendant, he pointed to the words 'not guilty'. Moreover, prior to the trial, the judge had defendant's hearing tested at Shreveport and, it being found that it was 58% of normal in one ear and 72% in the other, he was fitted with a hearing aid. According to the per curiam, defendant and his counsel conversed in whispered tones without difficulty during the trial of the case.
In view of the uncontradicted findings of the trial judge, there is no merit in defendant's complaints.
Bills Nos. 3 and 42 were taken in connection with the alleged failure of the court to require the plea of defendant read to the jury. It is said that, since the Code of Criminal Procedure, LSA-R.S. 15:333, provides that the plea of the accused be read to the jury as one of the necessary steps in the trial of a criminal case, failure to do so constitutes reversible error.
The contention is untenable. Whereas, a complete omission to inform the jury of a defendant's plea might be serious, failure to literally read it from the miutes can, at best, be considered as an insubstantial violation of a legal requirement in the absence of a showing of prejudice. Code of Criminal Procedure, LSA-R.S. 15:557. The evidence in the instant case shows that the deputy clerk stated to the jury that the defendant had pleaded 'not guilty'. Defendant's complaint is that the deputy clerk was not looking at the minutes of the court at the time she conveyed this information to the jury.
Bill of Exceptions No. 5 is founded on the proposition that the State was permitted, over objection of defense counsel, to prove the location of the crime to be at a place different from that set forth in the bill of particulars. However, the judge states in his per curiam that there was no variance between the location stated in the bill of particulars and that given by the deputy sheriff (whose testimony forms the basis of the bill) at the trial and that defense counsel merely misunderstood the location as set froth in the bill of particulars. In view of this, further discussion of defendant's complaint would be superfluous.
Bill of Exceptions No. 6 was taken when the judge overruled an objection to a question propounded by the district attorney to a state witness on the ground that the evidence sought to be elicited was immaterial and irrelevant. Since neither the question nor the answer is to be found either in the bill or the record, there is nothing for review. State v. Pizzolotto, 209 La. 644, 25 So.2d 292 and cases there cited.
Bill No. 7 is in the same category as Bill No. 6. It was taken to the overruling of an objection interposed to a question which sought to elicit evidence having...
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State v. Cardinale
...timely objection is made to its omission, the failure of the trial judge to require that the plea be read is error. See State v. Gayton, 221 La. 1115, 61 So.2d 890 and State v. Ducre, 173 La. 438, 137 So. 'In the instant case, however, the defense made no objection at the time of the omissi......
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State v. Leslie
...timely objection is made to its omission, the failure of the trial judge to require that the plea be read is error. See State v. Gayton, 221 La. 1115, 61 So.2d 890 and State v. Ducre, 173 La. 438, 137 So. In the instant case, however, the defense made no objection at the time of the omissio......