State v. Jackson
| Decision Date | 04 May 1971 |
| Docket Number | No. 50854,50854 |
| Citation | 247 So.2d 558,258 La. 632 |
| Parties | STATE of Louisiana v. James Henry JACKSON. |
| Court | Louisiana Supreme Court |
Hazen W. Cole, James M. Barton, Shreveport, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Fred C. Sexton, Jr., Asst. Dist. Atty., for plaintiff-appellee.
The defendant was charged with forgery (R.S. 14:72), tried, and found guilty of attempted forgery. After conviction and before sentence a bill of information was filed charging him as a fourth felony offender. After a hearing the court ruled the defendant to be a fourth felony offender as defined by R.S. 15:529.1 and sentenced him to the state penitentiary for 20 years. He has appealed.
Bill of Exception No. 1 was reserved when the court denied the defendant's motion for a preliminary examination. The motion for preliminary hearing was filed after the filing of the information and after bail had been fixed, and made no allegation of special circumstances requiring the hearing. Under Code of Criminal Procedure Article 292 it is discretionary with the trial judge to grant or refuse a motion for preliminary examination filed after the filing of the bill of information. From the per curiam of the judge we find no abuse of discretion. Moreover, the denial of this pretrial motion was not prejudicial on the question of the defendant's guilt or innocence since the motion is limited in scope to a determination of probable cause to charge for an offense and fixing of bail. State v. McCoy, this day decided, 258 La. 645, 247 So.2d 562; State v. Pesson, 256 La. 201, 235 So.2d 568 (1970); State v. Hudson, 253 La. 992, 221 So.2d 484 (1969).
This bill was taken when the court denied the defendant's written motion for a continuance on the basis of the absence of a material witness. The colloquy of the court, the district attorney, and defense counsel is made a part of the bill. Defense counsel and the State were not able to agree upon what the testimony of the absent witness would be. The case had previously been set for trial on May 18, 1970, at which time the requested witness was also absent. The case finally came on for trial on June 10, 1970. Although represnted by counsel, the defendant, who had been in jail since November 28, 1969, had filed in proper person numerous motions for a speedy trial during his incarceration. It was stated that the desired witness was a fugitive with an outstanding warrant against him in the trial court's jurisdiction. Since the matter had been continued once to obtain the witness, since no showing was made that the witness would ever be available, and since there was no showing of defendant's diligence in attempting to obtain the witness, the trial court concluded that a continuance would be of no benefit to the defendant, that delay could possibly prejudice him, and that the continuance was not warranted under the showing. Under the circumstances reflected by the record, we believe the trial court exercised the proper discretion in overruling the motion for continuance.
This bill was reserved when the trial court denied the defendant's oral motion for trial by a jury of 12 instead of a jury of five. The defendant contends that his right to trial by jury under the United States Constitution, Sixth Amendment, is a right to trial by a 12-man jury. This question, however, was put at rest in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), which held that a Florida statute requiring a six-man jury in all except capital cases (similar to our Code of Criminal Procedural Article 782 which provides for a five-man jury in cases in which punishment may or may not be imprisonment at hard labor) was not in violation of Sixth Amendment rights.
The defendant's forgery is alleged to have occurred when he attempted to cash a check which he had made falsely and which was imprinted with 'Ouachita Finance Company, Inc., 3958 Southern Avenue, Shreveport, Louisiana 71106'. Ouachita Finance is a subsidiary of Sales Finance Company which is located at that address. When the State attempted to prove that the defendant had stolen the Ouachita Finance checks from Sales Finance Company's office and to prove also that he had used the check-protector in that office to imprint the check he attempted to negotiate, the defendant objected, and reserved Bill No. 4 to the overruling of his objection.
It is apparent that the State was trying to establish a continuing chain of circumstances and facts which constituted the crime of forgery. Evidence of the accused's possession of the check forms and of his presence on the premises where he had access to and use of the checks and the printing machine was admissible in this prosecution for falsely making or altering a signature upon a writing purporting to have legal efficacy. The forgery here was a continuing offense of which these facts and circumstances were elements.
This bill was taken when the State offered in evidence a second check, found upon the person of the defendant when he was arrested, similar to the one presented for cashing except for the amount. An essential ingredient of the crime of forgery is specific intent, and the second check would be admissible for the purpose of establishing intent. R.S. 15:445, 446. Moreover, evidence of the defendant's possession of this check would be admissible as a part of that continuing chain of facts and circumstances of the act of forgery with which he was charged. Bill of Exception No. 6.
The defendant here complains that his oral statement to the police was involuntary, contending that he was so intoxicated when he gave the statement as to be incapable of waiving his constitutional rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
The testimony reflects that the defendant was arrested in the very early hours of the morning, taken to the city jail, given the 'Miranda warnings', asked the normal booking questions, but not interrogated about the offense. No statement was made relating to guilt or innocence by the defendant, and he was booked and incarcerated. He was next seen by police officers later that morning and was given the full Miranda warnings immediately after the two investigating officers introduced themselves. Since he appeared to the officers to be intoxicated, they desisted from interrogation and withdrew. The same officers returned about three o'clock in the afternoon and repeated the full Miranda warnings. The defendant talked with the officers but made no incriminating...
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State v. Hopson, 35,436-KA.
...So.2d 97 (La.1979), U.S. cert. denied. "An essential ingredient of the crime of forgery is specific intent... ." State v. Jackson, 258 La. 632, 247 So.2d 558, 560 (La.1971). See also the Reporter's Comment to La. R.S. 14:11, which states, in ... in some crimes the production of certain cons......
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