State v. Johnson

• Decision Date: 26 April 1954
• Docket Number: No. 41660,41660
• Citation: 226 La. 30,74 So.2d 402
• Parties: STATE v. JOHNSON.
• Court: Louisiana Supreme Court

Page 402

74 So.2d 402

226 La. 30

STATE v. JOHNSON.

No. 41660.

Supreme Court of Louisiana.

April 26, 1954.

Rehearing Denied July 2, 1954.

James D. McIntosh, Oak Grove, Kent Breard, Monroe, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Harry N. Anders, Dist. Atty., Winnsboro, W. Sartis Bassett, Asst. Dist. Atty., Oak Grove, for appellee.

McCALEB, Justice.

Tom Johnson, a 41 year old Negro employed as a farm laborer on the Holt-Murphy Plantation in West Carroll Parish, shot and killed one Henry F. Lewis, the 60 year old white overseer of the plantation, on the morning of September 29, 1953. He was indicted for murder on October 2, 1953. The indictment was quashed on motion of the attorneys, who were appointed by the court to defend him. He was again indicted, on Cotober 22, 1953, but that indictment met the same fate as the first one, being quashed by the district judge because of irregularities committed by the jury commissioners in the drawing of the Grand and Petit Juries. On November 6, 1953, another indictment was returned against him, to which he entered a plea of not guilty by reason of insanity. Following a trial, he was found guilty as charged and sentenced to death. He is appealing from his conviction, relying on twelve bills of exceptions for a reversal.

Bill No. 1 was taken to the overruling of a motion for a change of venue which was grounded on the claim that the citizens of West Carroll Parish were prejudiced against appellant. To support this claim, six witnesses and various newspaper accounts, concerning events subsequent to the homicide, were offered by the defense. Seven witnesses testified for the State.

The proof does not sustain appellant's contention that public opinion in West Carroll Parish was so crystalized and fixed against him that he could not receive a fair trial therein. An application for a change of venue is addressed to the sound discretion of the judge. State v. Roberson, 159 La. 562, 105 So. 621, State v. Collier, 161 La. 856, 109 So. 516, State v. Washington, 207 La. 849, 22 So.2d 193 and State v. Leming, 217 La. 257, 46 So.2d 262. Here, we find no abuse of discretion; the evidence shows that the ruling was correct.

Bills Nos. 2, 3 and 6 relate to the refusal of the judge to appoint a lunacy commission. On November 13, 1953, ten days before the trial was scheduled, counsel filed a motion that appellant be examined for the purpose of determining his present sanity and his sanity at the time of the commission of the offense. In this motion, it was set forth that appellant had become insane, some twenty years ago, after being struck by a bolt of lightning which left him partially paralyzed; that, approximately a year before the homicide, he had injured his head in a violent fall; that, suffering continuous head pains, he was placed in a clinic in Delhi, Louisiana for treatment where it was found advisable that he undergo a frontal operation and that operation were performed at Charity Hospitals in Monroe and New Orleans. A certified copy of appellant's medical record at Charity Hospital in New Orleans was attached to the motion.

The judge denied the appointment of a lunacy commission on the ground that the motion was not properly supported by affidavits and was of the further opinion that there was nothing in the Charity Hospital report that afforded any reasonable ground to believe that appellant was insane.¹ To this ruling, defense counsel reserved Bill No. 2 and requested the judge to permit them to file an affidavit based on facts in support of the motion. The judge refused this request, stating that the offer came too late and that the affidavit of counsel would add nothing to the motion. Counsel then reserved Bill No. 3.

On the date of the trial, November 23, 1953, counsel filed another motion, identical in verbiage with the first, for a lunacy commission. As this motion was supported by several affidavits, the judge ordered a hearing on the question of whether or not a commission should be appointed. In support of the allegations, thirteen lay witnesses were produced. Most of these witnesses lived a great distance from appellant and, with the exception of a few relatives, none had seen or observed him for more than a year before the commission of the offense. Moreover, while their statements were to the effect that appellant is dull minded and that he suffered from occasional seizures ('fits'), not one of them avouched that he was incapable of distinguishing between right and wrong.

The judge, in denying the application, resolved that, after hearing the evidence (taken in connection with his personal investigation and observation), there was no substantial basis to cause him to believe that appellant was or is insane.

The appointment of a lunacy commission is addressed to the sound discretion of the trial court, State v. Ledet, 211 La. 769, 30 So.2d 830, the test being whether, from the facts brought to the attention of the judge, he has reasonable ground to believe that the accused is insane or mentally defective to the extent that he is unable to understand the proceedings against him. Article 267, Code of Criminal Procedure, LSA-R.S. 15:267; State v. Ridgway, 178 La. 606, 152 So. 306, State v. Hebert, 186 La. 308, 172 So. 167, State v. Messer, 194 La. 238, 193 So. 633, State v. Gunter, 208 La. 694, 23 So.2d 305 and State v. Bessar, 213 La. 299, 34 So.2d 785. Hence, the burden was upon appellant to exhibit that there was a manifest abuse of discretion by the judge. This he has not done as the testimony of his witnesses is not of such quality to inspire in the judge a reasonable basis for believing that appellant was or is insane, this being particularly so when their statements are compared with the opposing views expressed by the witnesses for the State.

Insofar as Bills Nos. 2 and 3 are concerned, it suffices to say that, even if it be assumed that the judge was wrong in summarily dismissing the application for a lunacy commission on November 13, 1953, the error was of no consequence since appellant was afforded a full hearing on November 23rd.

Bill of Exceptions No. 4 was reserved to the overruling of a challenge for cause of the prospective juror, George Newman, on the ground that he favored an unqualified verdict in the case in the absence of mitigating circumstances.

There is no merit in the bill for the reason that the testimony of Mr. Newman on his voir dire plainly discloses that he had no fixed opinion as to whether he would vote for life imprisonment or capital punishment, if appellant's guilt was shown beyond a reasonable doubt.

The case of State v. Henry, 197 La. 999, 3 So.2d 104, relied on by counsel, is not authority for their position that the accused in a murder case should not be required to accept a juror who favors a capital over a qualified verdict where there are no mitigating circumstances. Conversely, the opinion in that matter declares that it is improper for counsel on either side to question prospective jurors in capital cases respecting the kind of verdict they would render under any given state of facts or circumstances. However, the rationale of the dicision is that, as it is permissible for the State to ascertain whether prospective jurors have conscientious scruples against capital punishment, the accused is likewise entitled to elicit information as to whether such jurors favor only the death penalty, in the event of conviction, and are opposed in principle to a qualified verdict. The juror challenged in this case did not say that he opposed the rendition of a qualified verdict in case of guilt; he properly said (in answer to an improper question) that the verdict for which he would vote would depend on the evidence in the case.

Bill No. 5, which was taken to the overruling of a motion for a continuance applied for on the day of trial, is not substantial. The basis of the motion was that counsel, who had been appointed by the court, on November 6, 1953, seventeen days before the trial, did not have sufficient time within which to investigate the case and adequately prepare a defense. It appears that the judge offered to postpone the trial for a week, so that counsel would have additional time, but they insisted that a thirty day continuance was in order. Why this additional delay was essential is not entirely clear. Indeed, counsel refused the seven day offer by the court and apparently were not inconvenienced by trying the case on the day originally fixed.

Bill No. 7 was reserved to the overruling of an oral motion of defense counsel for a lunacy commission, which was made following the introduction of evidence on the trial of the case, touching upon the present sanity of appellant. In his per curiam, the judge remarks that he overruled this motion because the evidence offered on the trial was the same type of lay testimony as that submitted to him at the hearing of the formal application for the appointment of a lunacy commission.

Since this additional evidence is of the same tenor as that presented on the written motion for a lunacy commission, we cannot say that the judge abused his discretion in ruling that it did not cause him to alter his previous opinion as to appellant's sanity.

Bills Nos. 8, 9 and 10 relate to proceedings had for the introduction of a statement or purported confession in evidence and may be considered together.

In his opening statement, the district attorney told the jury that the accused had made a statement concerning the killing and, thereafter, during the trial, he announced that he was desirous of laying the foundation for the admission of this statement in evidence. At that time, the court inquired of counsel for appellant whether they wished that the jury be removed from the courtroom. Upon the failure of counsel to take advantage of this offer and request that the jury be withdrawn, evidence was taken in the presence of the...