State v. Henry

• Decision Date: 25 May 1942
• Docket Number: 36642.
• Citation: 200 La. 875,9 So.2d 215
• Court: Louisiana Supreme Court
• Parties: STATE v. HENRY.

9 So.2d 215

200 La. 875

STATE v. HENRY.

No. 36642.

Supreme Court of Louisiana

May 25, 1942

Rehearing Denied June 29, 1942.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst Atty. Gen., and Griffin T. Hawkins, Dist. Atty., and Joseph J. Tritico and Preston L. Savoy, Asst. Dist. Attys., all of Lake Charles, for the State.

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

FOURNET Justice.

The defendant, Mrs. Annie Beatrice Henry, is prosecuting this appeal from her third conviction and sentence to die for the murder of J. P. Calloway on February 14, 1940, relying for the reversal thereof on certain errors allegedly made during the course of the trial, to which objections were timely made and bills of exceptions reserved.

It appears that in order to carry out a preconceived plan to rob a bank in Arkansas, Mrs. Henry and her accomplice, Finnon Burks held up the deceased, with whom they had secured a ride while hitchhiking, and robbed him, Mrs. Henry shooting him while he was on his knees begging for his life after she had caused him to remove his clothing and had ordered her accomplice to destroy the same in order that their pursuit might be hindered by the delayed identification of Calloway's body in the event it was found.

On February 27, 1940, Mrs. Henry was jointly indicted with Burks for Calloway's murder, but, upon her own motion, was granted a severance. Burks was tried first and was convicted and sentenced to die, which conviction and sentence were affirmed by this court on November 4, 1940. State v. Burks, 196 La 374, 199 So. 220. On the same day this court set aside Mrs. Henry's first conviction and sentence to death and granted her a new trial. State v. Henry, 196 La. 217, 198 So. 910. On May 26, 1941, defendant's second conviction and sentence were set aside. 197 La. 999, 3 So.2d 104.

Bills of Exceptions Nos. 1, 2, and 3 are interrelated, all being levelled at the overruling of defendant's motion for the recusation of the Honorable. Griffin T. Hawkins, the district attorney, and his assistant, the Honorable Joseph J. Tritico. The bases of this motion are (1) that a close friend of Mrs. Henry's consulted Hawkins and Tritico with the view of employing them to assist her court-appointed attorneys in the prosecution of her appeal before the Supreme Court after her first conviction, and (2) that relatives of Finnon Burks, prior to the time Mrs. Henry was granted a severance, consulted Hawkins and Tritico with the view of employing them to defend Burks--Tritico, without Hawkins knowledge, appearing in court as Burks' tentative attorney when he was arraigned--and, again, after his conviction, with the view of employing them to assist in presenting his petition to the pardon board.

In their answer to the motion, Hawkins and Tritico admitted they were approached by a friend of Mrs. Henry's and by relatives of Burks for the purposes outlined above, but alleged that neither of these employments was ever consummated. They denied that anyone whomsoever had ever at any time discussed with them the facts of either the Henry or Burks case.

The first and second bills of exceptions were reserved to the trial judge's ruling permitting the district attorney and his assistant to testify, over the objection of defendant's counsel, in support of the facts stated in their answer to the motion, the objection being based on the ground that the evidence was irrelevant and immaterial under Article 310 of the Code of Criminal Procedure, the pertinent part of which declares that 'Any district attorney shall be recused by the judge in criminal cases: * * * If said district attorney shall have been employed or consulted as attorney for the accused before his election or appointment as district attorney * * *.' Bill of Exceptions No. 3 was reserved to the overruling of the motion for recusation after the evidence was heard.

The above paragraph of Article 310 of the Code of Criminal Procedure is an exact replica of subsection 3 of Section 2 of Act No. 35 of 1877, which act was passed to amend Section 1067 of the Revised Statutes of 1870, and although this law has remained on our statute books over this long period of years, this is the first time it has been before the Supreme Court for consideration.

In disposing of these bills of exceptions, the trial judge said: 'It is our conception of the law that the Act upon which the motion is based was included in the Code for the purpose of protecting an accused, and to prevent the prosecution of an accused by one who had previously been his attorney, or who had been consulted as his attorney, so that he might have obtained privileged information which he otherwise would not have had,' declaring further: 'The evidence admitted in this case shows that the present District Attorney (or his assistant) was not employed as counsel for the defendant, was never consulted by the defendant or anyone else as her counsel, and had no information of any kind from the defendant or anyone else as to the facts of the case. The defendant could not be prejudiced by the present District Attorney (or his assistant) serving in that capacity in the prosecution of her case.' (Brackets ours.)

Counsel for defendant did not in any manner question the findings of the district judge with respect to the facts, it being their contention that the mere fact that Hawkins and Tritico were approached with the view of employment in both the Henry and Burks cases, irrespective of whether the facts of either case were ever discussed with them constituted consultation 'as attorney for the accused' within the meaning and contemplation of Article 310 of the Code of Criminal Procedure, relying on the cases of State ex rel. Stewart v. Reid, 114 La. 97, 38 So. 70; State v. Perkins, 124 La. 947, 50 So. 805; and State v. Tate, 185 La. 1006, 171 So. 108, to support this contention.

Counsel for defendant are in error in the interpretation they have placed upon this codal article. A mere reading of the article will show that it means exactly what it says, i.e., that any district attorney (or assistant district attorney) who has, previous to his election or appointment, 'been * * * consulted as attorney for the accused,' will be recused in the trial of the case. This clause does not say, nor can it be construed to mean, that the district attorney (or his assistant) will be recused because his employment was sought by someone on behalf of the accused prior to his election or appointment. It means that he will be recused if prior to his election or appointment he was consulted professionally with respect to the rights or defenses of the accused. We can think of no reason, and none has been pointed out to us, why the meaning of this codal article should be extended further. The reason for this rule of law is that it prevents a district attorney (or his assistant) from taking advantage of an accused by being placed in the position of having available for use against the accused information forming a part of the privileged communications existing between an attorney and his client that was imparted to him prior to his election or appointment. The other states that have passed on this point are in accord with this view. People v. Gerold, 265 Ill. 448, 107 N.E. 165, Ann.Cas.1916A, 636; People v. Hanson, 290 Ill. 370, 125 N.E. 268; Steeley v. State, 17 Okl.Cr. 252, 187 P. 821; Garrett v. State, 94 Tex.Cr. 556, 252 S.W. 527; and 27 C.J.S. 398, District and Prosecuting Attorneys, � 12.

The cases upon which counsel for defendant rely are not apposite. In fact they, in our opinion, demonstrate that the object of the rule incorporated into our statutory law as Article 310 of the Code of Criminal Procedure is as herein expressed.

The effect of the Perkins and Reid cases is that a district judge will not be allowed to sit in the trial of a cause where there is a possibility that his judgment will be affected by reason of his connection with the case prior to his election to the bench, while the basis for the motion of recusation in the Tate case [185 La. 1006, 171 So. 111], upon which the court rested its decision, was that 'the district attorney had a personal interest adverse to that of the prosecution, in that it was his legal duty to protect the innocent as well as to prosecute the guilty, which he could not do because he was associated as an attorney in a series of civil suits against the defendant, the outcome of which depended upon his success in convicting the defendant.' (Italics ours.)

In the Perkins case the district judge sitting at the trial of Perkins, who was charged on an information with embezzling a large sum of taxes collected by him by virtue of his office, was sought to be recused on the ground that prior to his election as judge he had been employed and consulted for the purpose of taking steps to recover the money which Perkins was alleged to have misappropriated and embezzled. This court declared that the legislature by its adoption of Act No. 40 of 1880 created a uniform rule for the recusation of district judges which applied in both civil and criminal cases, holding that the judge in question had been consulted 'as [an] advocate in the cause' within the meaning and contemplation of the act for while he was employed and consulted on the civil remedy, nevertheless, 'the basic matter was the same as in the criminal prosecution.' Continuing, the court pointed out: 'The recovery against the bank and other parties was predicated, not only on a shortage in the accounts of the tax collector, but also on his alleged wrongful diversion of the taxes to his own use. Such shortage and misuse constitute important elements of the crime with which defendant stands charged.' [124 La. 947, 50 So....