State v. Jugger

• Decision Date: 24 April 1950
• Docket Number: No. 39748,39748
• Citation: 217 La. 687,47 So.2d 46
• Parties: STATE v. JUGGER et al.
• Court: Louisiana Supreme Court

Page 46

47 So.2d 46

217 La. 687

STATE v. JUGGER et al.

No. 39748.

Supreme Court of Louisiana.

April 24, 1950.

Rehearing Denied May 29, 1950.

Andrew H. Thalheim, Gretna, James I. McCain, New Orleans, for appellants.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. (Frank H. Langridge, Dist. Atty., L. Julian Samuel, Asst. Dist. Atty., Gretna, John E. Fleury, Former Dist. Atty., Gretna, Fred L. Middleton, New Orleans, of counsel), for appellee.

McCALEB, Justice.

At about 2:00 o'clock on the morning of March 16, 1948, appellants, two Negro men, broke into the residence of a lone, middleaged (48) white widow woman located in the upper Metairie Ridge section of Jefferson Parish. They entered the bedroom in which the woman was sleeping where each proceeded to rape her, one of them holding her in submission while the other performed the act. After commission of the crime, the men rifled the bureau, chest of drawers and other furniture of money and jewelry, pulled the telephone off the wall and left the premises. Appellants were apprehended two or three days later and, in due course, they were indicted, tried and convicted of aggravated rape. Following the imposition of the death sentence, they prosecuted this appeal, depending upon thirty-three ¹ bills of exception for a reversal of their conviction.

During the pendency of the case here, the State moved to dismiss the appeal as to appellant, Ocie Jugger, alleging that he escaped, on December 19, 1949, from the parish jail at Gretna, Louisiana, where he was incarcerated, and that he is still at large. The motion to dismiss is supported by an affidavit of the sheriff of the Parish of Jefferson, and the statements therein subscribed are not denied. Notwithstanding this, counsel for Jugger oppose the dismissal of his appeal on the ground that this Court is without jurisdiction to determine facts and that the case must be remanded for the admission of testimony in support of the motion.

It is provided by Article 548 of the Code of Criminal Procedure that an appeal will be dismissed if the appellant is a fugitive from justice either on the return day or on the day fixed for the hearing. And it is settled that 'if a person convicted of a criminal offense appeals and breaks jail and escapes, his appeal will be dismissed.' State v. Scruggs, 192 La. 297, 187 So. 673, citing State v. Butler, 132 La. 597, 61 So. 682; State v. Lacroute, 134 La. 3, 63 So. 603, and State v. Rogers, 150 La. 1080, 91 So. 518.

It is also well established that, when the motion to dismiss is supported by an affidavit of the sheriff or other officer last having custody of the appellant that he is a fugitive, it will be accepted by this Court as sufficient proof of the statements contained therein if they are not denied. State v. Scruggs, State v. Butler, and State v. Lacroute, supra.

The ruling in State v. Rogers, supra upon which counsel for Jugger relies, is in direct conflict with the other jurisprudence on the subject. We doubt the soundness of the conclusion there reached, as we perceive no good reason why the affidavit of the sheriff should not be accepted as proof of the fact that appellant is a fugitive, when the statements are not traversed. It was correctly observed in State v. Rogers that this Court does not have original jurisdiction, except in the determination of questions of fact affecting its appellate jurisdiction in cases pending before it, but it was erroneously concluded that the question, whether the appellant was a fugitive, was not a question of fact affecting the appellate jurisdiction of the Court. Obviously, this is a matter of fact upon which our jurisdiction depends--for, if an appellant is a fugitive, we are without jurisdiction of the appeal. The case of State v. Farris, 146 La. 523, 83 So. 791, cited by the Court in State v. Rogers to buttress its ruling, was not apposite as, there, the remand of the case was for the purpose of taking testimony to settle a dispute respecting a matter occurring during the trial.

The motion of the State is therefore sustained and the appeal is dismissed as to appellant Jugger.

With regard to the appeal of Washington, we note at the outset that the most important question presented for review is the admissibility of two oral confessions which were given while appellant was in the custody of deputy sheriffs of Jefferson Parish and a written confession made while he was incarcerated in the Gretna jail.

The record shows that Washington and Jugger made five oral confessions, the first three of which were excluded by the trial judge. The fourth and fifth oral statements, however, were admitted after the State had proved to the judge's satisfaction, out of the presence of the jury in accordance with accepted procedure, that they were free and voluntary.

In order that a proper understanding may be had of the complaints of counsel, a brief statement of the circumstances under which all the confessions were given is appropriate.

After the commission of the deed for which they stand convicted, Washington and Jugger tried to pawn a watch, formerly belonging to the deceased husband of their victim, which they had stolen on the night of the crime. In pursuance of their purpose, they enlisted the aid of another Negro, Vincent North, who later became a witness for the State. On March 17, 1948, Washington sent North to a loan company with directions to pawn the watch for $10.00. When the attempt was made, North was immediately apprehended by detectives of the New Orleans Police Department and taken to police headquarters where he was questioned and beaten (according to his testimony) by several detectives. That night he was turned over to Mr. John Stewart, a Deputy Sheriff of Jefferson Parish and placed in the jail of the Town of Harahan. The following day, upon information given by North, Washington and Jugger were arrested by Stewart. Jugger was taken to the Harahan jail, where North was incarcerated, and Washington was placed in the jail at Metairie. Later, on the same day, Stewart, accompanied by Mr. Sam Bonura, another Deputy Sheriff, took Washington on an automobile ride. While the automobile was stopped in front of the office of a doctor whom Stewart was visiting, Washington confessed the crime to Bonura after the latter had told him to 'come clean and tell the truth' as it would be 'better' for him. The confession was repeated by Washington to Stewart upon the return trip to Jefferson Parish, where Washington was placed in the Harahan jail in which North and Jugger were prisoners. This confession was excluded by the trial judge on objection of defense counsel.

The second confession occurred on the following day, March 19, at the Harahan jail, according to the testimony of Stewart, after Washington (who was in the cell next to Jugger) informed Jugger that he had confessed and adjured Jugger to tell all. Stewart says that Jugger asked him 'if I would promise that he would get a fair trial if he told his part, and I said I would' and then he proceeded to make the same statement as Washington had previously made. He further states that his only promise to the men was that they would be taken to the parish jail at Gretna and be given a fair trial. The judge sustained defense counsel's objection to the introduction of this confession.

The third confession was given on the following night, Saturday, March 20, by both men to two brothers-in-law (citizens of New Orleans) of the victim of the attack, who were accompanied to the Harahan jail by a New Orleans detective. Both of these gentlemen avouched that the statements of Washington and Jugger were voluntary in every respect and were not induced by promises, fear, threats or intimidation. One of the brothers-in-law stated, on cross-examination, that he was harboring a feeling of outrage but said that he was, at all times, calm and did nothing that could have been interpreted as a threat. The testimony of the men is fully corroborated by the detective who accompanied them to the jail and also by the local jailer. But, despite this strong evidence which was not denied by either Washington or Jugger, who did not see fit to testify when the foundation for the admission of the confessions was being laid, ² the judge maintained the objection of defense counsel and refused to receive the confession in evidence.

The fourth confession was given on the following day, Sunday, March 21, while Deputies Stewart and Bonura were driving Washington, Jugger and North from the Harahan jail to the parish jail at Gretna. En route, Stewart stopped the car at the Owl Club, a Negro saloon in the vicinity of Jugger's home, which was owned by James Lambert, a colored man, who was acquainted with Jugger and Washington and who stated that they had been drinking beer in his place the night of the commission of the crime. Upon reaching there, Stewart called Lambert and, when the latter appeared, Stewart said to Washington and Jugger 'I want you to tell Jimmy just what happened * * * you can go ahead and tell him.' Whereupon, according to Lambert, Jackson (another colored man who was a bystander), Stewart, Bonura, and North, an oral confession was made by Washington and concurred in by Jugger. All of these witnesses asserted that no promises, threats or other inducements were made and the judge ruled the confession admissible.

The fifth confession was given under very similar circumstances. After leaving the Owl Club, Stewart stopped at another colored barroom, known as the Midway Beer Parlor, which is operated by a Negro named John Wilson, where Stewart alighted from the car and called to Wilson. When Wilson appeared, Stewart told Washington and Jugger to 'tell this man what you have done,' and then walked away from the car. Wilson says that thereupon Jugger told him of the commission of the crime and that his statement was concurred in by Washington. All the witnesses, Wilson, Bonura and...