State v. Henry

• Decision Date: 04 November 1940
• Docket Number: 35876.
• Citation: 196 La. 217,198 So. 910
• Court: Louisiana Supreme Court
• Parties: STATE v. HENRY.

198 So. 910

196 La. 217

STATE v. HENRY.

No. 35876.

Supreme Court of Louisiana.

November 4, 1940

Appeal from Fourteenth Judicial District Court, Parish of Calcasieu John T. Hood, Judge.

Mrs Annie Beatrice Henry was convicted of murder, and she appeals.

Reversed and remanded.

Clement M. Moss and Norman F. Anderson, both of Lake Charles, for appellant.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp. Asst. Atty. Gen and C. V. Pattison, Dist. Atty., and Coleman D. Reed, and John H. Martin, Asst. Dist. Attys., all of Lake Charles, for the State.

HIGGINS, Justice.

The defendant, Mrs. Annie Beatrice Henry, and Finnon Burks were indicted jointly on February 27, 1940, for the murder of J. P. Calloway on February 14, 1940. The accused were arraigned on February 29, and a plea of ‘ not guilty’ was entered by counsel who had been appointed solely for the purpose of the arraignment. The case was immediately fixed for trial on March 27. On March 2, it appearing that the defendant was an indigent person, the present counsel were assigned by the court to defend her. On March 15, upon defendant's motion, she was granted a severance from the codefendat, Finnon Burks. On March 23, a motion for a continuance was filed by the defendant upon the ground that her attorneys were inexperienced in handling criminal matters as they had devoted their time almost exclusively to the practice of civil law and that under the circumstances of her case they did not have time to prepare themselves for the trial on March 27. On March 25, the continuance was denied, and, on March 27, counsel renewed their motion therefor but the court again overruled it. The trial began on March 27 and was concluded on March 29. At about 5:30 p. m. on the latter date, the case was submitted to the jury, and at 10:25 that night a verdict of ‘ guilty as charged’ was returned. After the original and supplemental motions for a new trial were denied, the defendant was sentenced to death. She has appealed and presents twenty-one bills of exception as the basis for asking that the verdict and sentence be annulled.

Bills of exception Nos. 1 and 2 were reserved to the trial judge's ruling in refusing to grant a continuance. Both of the attorneys for the defendant testified that they had been engaged in the legal profession for five and fourteen years, respectively, and that they had confined their efforts almost entirely to the practice of civil law and, therefore, it was necessary that they do considerable research work to familiarize themselves with criminal law and procedure in order to gain a working knowledge for the trial; that they had consulted the defendant only once and then for the primary purpose of considering preliminary motions; that a great part of their time was absorbed in pressing civil cases wherein the rights of their clients were in jeopardy and their consideration of these matters could not be postponed; that it was necessary to make an investigation in Beaumont, Texas, and Shreveport, Louisiana; and that additional difficulties and obstacles had been encountered through improper newspaper publicity of the case by the district attorney and the proposed special prosecutor.

The only legal qualification of counsel assigned in a capital case for the defense of an accused is that he shall have at least five years' actual experience at the bar. Article 143, Code of Criminal Procedure. In the instant case, the defendant's attorneys fulfilled that requirement. While it would be better practice, in the trial of capital cases, to appoint attorneys experienced in that particular field, counsel for the defense in this case, by their industry and intelligence, made up for whatever experience they lacked in the actual practice of criminal law. They had about twenty-five days within which to prepare for the trial and, under the jurisprudence as well as the facts of this case, that period of time was sufficient. State v. Wilson, 181 La. 61, 158 So. 621.

It has been held that other professional engagements existing at the time of counsel's employment do not constitute legal grounds for the granting of a continuance. State v. Turner, 122 La. 371, 47 So. 685.Furthermore, under Article 320 of the Code of Criminal Procedure, ‘ * * * granting or refusing of any continuance is within the sound discretion of the trial judge; * * *.’

We find nothing in the above bills which would indicate that our learned brother below arbitrarily exercised his discretion in refusing a continuance.

Bill of exception No. 3 was taken to the court's refusal to maintain defendant's objection to the enrolling of J. P. Copeland of Houston, Texas, as a special prosecutor to assist the district attorney in this case, and to the court's refusal to permit the defendant to examine Copeland with reference to his qualifications.

The record shows that at the beginning of the trial the district attorney introduced Mr. Copeland to the court and requested that his name be entered as a special assistant prosecutor. The defendant's attorneys objected to Mr. Copeland's enrollment until such time as evidence was placed before the court that Mr. Copeland was an attorney-at-law and admitted to the practice of law either in the State of Texas or the State of Louisiana. While the trial judge, in his per curiam, states that Mr. Copeland was an old friend of the family, neither the district attorney nor the judge stated that they knew or had any evidence which would indicate that he was an attorney-at-law qualified to practice before the courts of Texas or Louisiana.

Article 17 of the Code of Criminal Procedure grants the district attorney the right to employ or accept the assistance of ‘ counsel’ in the conduct of a criminal case but the article expressly limits employment to a ‘ counsel’ or an attorney-at-law. This article certainly does not contemplate that the district attorney in the prosecution of a criminal case has the right to employ or accept the assistance of a person who is not a ‘ counsel’ or an attorney-at-law.

Act No. 202 of the Legislature of 1932, provides certain requisites for the practice of law in this state by visiting counsel, the fundamental qualification being that he must be an attorney-at-law.

In the case of State v. Tate, 185 La. 1006, 171 So. 108, we held that a prosecuting attorney must be impartial in conducting a criminal case, since he is a quasijudicial officer, that he represents the state, and the state seeks justice only, and that it is as much the duty of the district attorney to protect the defendant under his constitutional and statutory rights as it is to see that no guilty party escapes. See, also, Flege v. State, 93 Neb. 610, 142 N.W. 276, 47 L.R.A.N.S., 1106.

Article 7, sections 59, 60 and 61 of the Constitution of Louisiana of 1921, sets forth the qualifications of a district attorney and assistant district attorneys, who are required to have been duly admitted to the practice of law. The defendant was entitled to know if Mr. Copeland was duly qualified to be designated and enrolled as a special prosecuting attorney against her, even though the district attorney and the trial judge were satisfied by Mr. Copeland's statement dehors the record that he was an attorney-at-law. If he was not an attorney, he was not eligible to participate in the trial. As the record now stands, neither the district attorney, the district judge, nor the members of this court know whether Mr. Copeland was eligible and qualified to serve as a special prosecutor in this case. Surely, his participation in the trial cannot be said to be favorable to the accused as he stated in the public press before the trial that he had been employed by the deceased's family to demand only a capital verdict.

In connection with this bill, counsel for the defendant also contended that even though Mr. Copeland were a qualified attorney in the State of Texas, he was lacking the qualifications as to residence, etc., required of a district attorney or an assistant district attorney under the Constitution and laws of the State of Louisiana to represent the State in the prosecution of the accused, citing sections 59, 60 and 61 of Article 7 of the Constitution of Louisiana of 1921. They have also referred us to the case of State v. Russell, 83 Wis. 330, 53 N.W. 441, where the court decided that under the Wisconsin statute providing for the appointment of ‘ counsel’ to assist the district attorney, a resident and attorney from another state was not eligible for appointment in the prosecution of a person for murder and that the appointment of the nonresident attorney to participate in the trial was prejudicial error, entitling the defendant to a new trial.

In Flege v. State, 93 Neb. 610, 142 N.W. 276, 277, 47 L.R.A.N.S., 1106, the court held, as follows:

" Public prosecutors and peace officers owe no greater obligation to the public than to a defendant charged with crime, and they should as zealously protect the one as the other.' This being true and maintained by all courts, it must appear to the mind at once that the appointment of a partisan special prosecutor was not in the interest of the fair and impartial trial guaranteed by the Constitution.'

See, also, State v. Tate et al., 185 La. 1006, 171 So. 108; State v. Cato, 116 La. 195, 40 So. 633 and O'Connor v. Parish of East Baton Rouge, 31 La.Ann. 221.

From the foregoing authorities it is apparent that this contention presents a serious legal question but as the record does not disclose Mr. Copeland's qualifications whatsoever, we shall refrain from giving our opinion on this point.

Bills of exception Nos. 4 and 5 were reserved to the district judge's refusal to permit defense counsel to ask the prospective jurors on their voir dire...