State v. Green

• Decision Date: 18 February 1963
• Docket Number: No. 46229,46229
• Citation: 244 La. 80,150 So.2d 571
• Parties: STATE of Louisiana v. Clifford T. GREEN.
• Court: Louisiana Supreme Court

Page 571

150 So.2d 571

244 La. 80

STATE of Louisiana v. Clifford T. GREEN.

No. 46229.

Supreme Court of Louisiana.

Feb. 18, 1963.

Rehearing Denied March 25, 1963.

Russell T. Tritico, Lake Charles, for appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Jack C. Watson, Asst. Dist. Atty., for appellee.

HAWTHORNE, Justice.

Clifford T. Green, charged under R.S. 40:962 with the crime of unlawfully selling narcotics, has appealed from his conviction and sentence to 10 years in the state penitentiary.

For reversal of the conviction he relies on a number of bills of exception. ¹ For a proper understanding of the issues presented by these bills, we shall first give a resume of the facts and circumstances as related in the briefs filed here and the judge's per curiams. ²

The Calcasieu sheriff's department became concerned over an increase in the unlawful sale of narcotic drugs in the Negro section of Lake Charles. In an effort to locate the sources of the drugs unlawfully sold and to learn the identity of the sellers, a deputy sheriff made contact with Robert Boyd, who had previously assisted the sheriff's department in the investigation of criminal activities, and asked Boyd to act as an undercover agent in the narcotics investigation--that is, to 'make a buy' of narcotics with marked money supplied to him by the sheriff's department. Boyd got in touch with two men named Higgins and LaGrange, the former of whom was known to Boyd as a user of narcotics. Neither LaGrange nor Higgins was aware that Boyd was acting as an undercover agent. To arrange a sale LaGrange telephoned the defendant Clifford T. Green, a Negro, who at that time was a registered pharmacist employed at a hospital and in this position had access to narcotic drugs. Pursuant to the telephone conversation the defendant Green brought narcotics on June 18, 1961, to LaGrange's home, where he was met by Boyd, Higgins, and LaGrange. On that day at about noon the sale was consummated at the home of LaGrange; the defendant at that time delivered to Higgins some 30 tablets of the narcotic drug dilaudid and was paid for the tablets with marked money which had been furnished to Boyd by the sheriff's department.

Boyd reported this purchase to the sheriff's office, and on the same day, June 18, deputy sheriffs went to Green's home and arrested him without a warrant. He was taken to the sheriff's office by these officers, and there was requested to empty his billfold, and he did so. The contents of the billfold included currency which had been previously marked and listed by the sheriff's office and which had been used in making the purchase of the marcotics in this case.

On June 20, 1961, a deputy sheriff executed what purported to be an affidavit charging the defendant with the unlawful sale of narcotics. This affidavit was signed by the officer in the district attorney's office and subsequently taken by someone to the district judge. The district judge, who informs us that the signature of this officer was well known to him, issued a warrant for the arrest of the defendant, in which the amount of the bail bond was specified. The defendant had been kept in jail from the time he was taken into custody on June 18 to the time this warrant was executed on June 20. The State says that since the defendant was already under arrest and in custody, its only purpose in causing this warrant to issue was to fix the amount of his bail. After issuance of this warrant, the defendant executed the bail bond and was released from custody.

On July 24, 1961, a bill of information was filed by the district attorney under which defendant was tried and convicted.

Bill of Exception No. 2.

The first bill for our consideration, Bill of Exception No. 2, was taken to the trial judge's overruling of a motion to quash the bill of information. One of the grounds urged by the accused is that the warrant of June 20 issued for his arrest was illegal because it was not signed by the deputy sheriff in the presence of the judge and no oath was administered to the deputy.

Even if we should agree with the accused that the warrant of arrest issued on June 20 was illegal, this argument would be of no avail to him, for an unlawful arrest, of itself, is '* * * no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant'. 15 Am.Jur., Criminal Law, sec. 317, p. 15.

'* * * the illegal arrest of one charged with crime is no bar to his prosecution if all other elements necessary to give a court jurisdiction to try accused are present, a conviction in such a case being unaffected by such unlawful arrest. * * *' 22 C.J.S. Criminal Law § 144, at p. 383.

'If a defendant is physically before the court upon a complaint or indictment, either because he is held in custody after an arrest or because he has appeared in person after giving bail, the invalidity of the original arrest is immaterial, even though seasonably raised, as regards the jurisdiction of the court to proceed with the case. * * *' 4 Wharton's Criminal Law and Procedure (1957), sec. 1484, p. 43.

So far as we can ascertain, there is no Louisiana case upon this point, but the rule just stated has been recognized and approved throughout the United States. Ker v. Illinois, 119 U.S. 436, 440, 7 S.Ct. 225. 30 L.Ed. 421; In re Johnson, 167 U.S. 120, 17 S.Ct. 735, 42 L.Ed. 103; Rose v. McKean, 190 Misc. 982, 76 N.Y.S.2d 391; Commonwealth v. Gorman, 288 Mass. 294, 192 N.E. 618, 96 A.L.R. 977; State ex rel. Schwanke v. Utecht, 233 Minn. 434, 47 N.W.2d 99; State ex rel. Farrington v. Rigg, 259 Minn. 483, 107 N.W.2d 841; State v. Zdovc, 106 Ohio App. 481, 151 N.E.2d 672; State v. Boynton, 143 Me. 313, 62 A.2d 182; State v. Poynter, 70 Idaho 438, 220 P.2d 386; Cofer v. Oklahoma City (Okl.Cr.), 277 P.2d 204; State v. Ryan, 48 Wash.2d 304, 293 P.2d 399; Commonwealth ex rel. DiDio v. Baldi, 176 Pa.Super. 119, 106 A.2d 910; Wright v. Maryland, 222 Md. 242, 159 A.2d 636.

The motion to quash next urges that the bill of information under which the accused was prosecuted was vague and indefinite, failed to inform him of the nature and cause of the accusation against him, and stated nothing more than a conclusion without giving any facts or circumstances upon which a conclusion could be based. On motion of the State the court permitted the information to be amended to meet this objection, and the amended information, with the added portions italicized, reads as follows:

'Clifford T. Green at the Parish of Calcasieu on or about the 18th day of June in the year of our Lord, One Thousand Nine Hundred and sixty one; (1961), At approximately 12 o'clock noon at the home of Harold LaGrange, 1312 Belden Street, Lake Charles, Louisiana, Did unlawfully sell To James L. Higgins a certain narcotic drug, viz: 30 dilaudid tablets 1/32 grain tablets, in violation of R.S. 40:962 * * *.' (Italics ours.)

This amendment of the bill of information was permitted by the couret on December 4, 1961, and the trial of the accused actually began on March 26, 1962. The ruling of the court permitting the amendment was correct under R.S. 15:253, which provides: '* * * The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. * * *'

Bill of Exception No. 3.

Bill of Exception No. 3 was reserved to the ruling of the court permitting the amendment of the information as set out in our discussion of Bill No. 2. This bill is without merit for the reasons given there.

Bill of Exception No. 4.

Prior to trial the defendant, alleging the illegality of his arrest, filed a motion and rule to cancel and set aside his bail bond. This motion to cancel and set aside the bond was denied, and Bill of Exception No. 4 was reserved.

The bail bond in the instant case served to insure the appearance of the defendant before the district court at such times as might be fixed by that court. Since the defendant appeared at such times as were fixed, was tried and convicted under a bill of information charging the illegal sale of narcotics, and was sentenced to imprisonment at hard labor for 10 years, his conviction and sentence have the effect under the law of releasing the surety on the bond from any responsibility. See R.S. 15:110. Under these circumstances this bill presents nothing for our determination on this appeal, especially since the State has not sought the forfeiture of the bond and the accused is now in actual custody under the sentence imposed. R.S. 15:85.

Bills of Exception Nos. 5 and 6.

These bills were taken to the overruling of objections made by counsel for the defendant to his arraignment, to the fixing of his case for trial, and to the trial itself. The basis of these objections was the alleged illegality of the arrest. As we have pointed out in our discussion of Bill No. 2, the accused was prosecuted under a bill of information filed by the district attorney, and what we said there is applicable here. These bills are therefore without merit.

Bill of Exception No. 7.

On voir dire examination a prospective juror was asked by the district attorney: 'Mr. Fontenot, we have been referring to this term 'reasonable doubt' in explaining and talking about the State's burden of proof. Now, as we had mentioned, the State has to prove the case beyond a reasonable doubt, and at the conclusion of the trial the Judge will tell you what the law means by the term 'reasonable doubt', and if the Judge instructs you that a reasonable doubt is not just a possible doubt or a frivolous doubt but means a real and substantial doubt a doubt such as you would give a good reason for having, would you be willing to accept this instruction and apply it to this case?' Counsel for the accused objected to this question on the ground that...