State v. Lampkin, 49015

• Decision Date: 20 January 1969
• Docket Number: No. 49015,49015
• Citation: 218 So.2d 289,253 La. 337
• Parties: STATE of Louisiana v. Clarance LAMPKIN.
• Court: Louisiana Supreme Court

Page 289

218 So.2d 289

253 La. 337

STATE of Louisiana v. Clarance LAMPKIN.

No. 49015.

Supreme Court of Louisiana.

Jan. 20, 1969.

Paul H. Kidd, Ruston, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., for appellee.

HAMLIN, Justice:

Clarance Lampkin ws charged by bill of information with the crime of simple burglary. LSA-R.S. 14:62. He was found guilty, convicted, and sentenced to serve six years at hard labor in the Louisiana State Penitentiary. He appealed to this Court, presenting for our consideration five bills of exceptions, one taken to the denial of a motion to suppress evidence and four reserved during the course of trial.

On the day set for argument in this Court, neither defendant nor his counsel appeared or filed a brief. The State, having filed its brief, submitted the matter for our disposition. It states in brief, page 2: 'After the defendant took the appeal in this matter, that is, on the date of April 1, 1968, he escaped from the Lincoln Parish Jail, committed burglaries of several offices in the Lincoln Parish Courthouse and fled from the State of Louisiana. His present whereabouts are unknown and he is a fugitive from justice.'

LSA-R.S. 15:548, the old Code of Criminal Procedure, provided, 'If the appellant be a fugitive from justice on the return day or on the day fixed for the hearing of his appeal, the appeal will be dismissed.' This section appeared in Chapter 1, under 'Appeal,' See, State v. Jugger, 217 La. 687, 47 So.2d 46. Cf. State v. Graves, 246 La. 460, 165 So.2d 285.

In the new Code of Criminal Procedure, effective January 1, 1967, under the 'Official Revision Comment' following LSA-C.Cr.P. Art. 919, it is stated: '* * * (c) Former R.S. 15:548 provided that if the appellant was a fugitive from justice on the return day or the day fixed for hearing on his appeal, the appeal would be dismissed. The provision is omitted from this Code, because it is unfair to the defendant. For example, if a man has appealed from a death sentence and he escapes, under the provisions of former R.S. 15:548, the effect is to make the escape a capital offense, since he loses his right to appeal. Furthermore, the more frightened a convicted defendant is, the more likely he is to attempt to escape, and he should not be denied his right to an appeal because of such circumstances.' We have also checked the Concordance Table; it recites that there was no replacement for LSA-R.S. 15:548.

Under the circumstances of this appeal, we shall dispose of all bills of exceptions and examine the record for a determination of whether there is error patent on its face.

BILL OF EXCEPTIONS NO. 1

Bill of Exceptions No. 1 was reserved to the trial court's overruling defendant's motion to suppress evidence.

Counsel for the defendant contended that the ruling of the trial judge was incorrect because: (1) the search warrant which had issued for search of the named premises was issued without probable cause; (2) the search warrant was fatally defective since the place to be searched was not properly and reasonably shown nor properly and reasonably identified; and (3) the search warrant was fatally defective because the property to be searched for was not properly and reasonably described.

The instant crime, the burglary of S and L Laundry, Ruston, Louisiana, was committed on the night of September 17, 1967.

On the night of September 19, 1967, Service Cleaners and Krousel's Shoe Store, Ruston, Louisiana, were also burglarized. An eyewitness gave Police Officer Edward L. Lester a description of the person who had broken into the latter two establishments. The description conformed with that of the defendant Clarance Lampkin, whom Officer Lester knew; Officer Lester also knew that Lampkin was in Ruston and immediately suspected him. A short time later that night, Lampkin was arrested at the residence of a Collins family; he was bleeding badly from cuts and was immediately taken to the Lincoln General Hospital. Chief O. O. Osborne, who participated in tracking down the defendant, remained with him at the hospital. Officer Lester then went to the home of Judge Fred W. Jones, Jr., Judge of the Municipal Court of Ward One of Lincoln Parish, a committing magistrate, and swore out the following affidavit:

'* * * appeared Edward L. Lester * * * deposes and says:

'That on or about the 17 day of Sept., 1967, in the parish of Lincoln, State of Louisiana, certain personal property belonging to S & L Laundry of the value of $20.00 was feloniously stolen and taken from S & L Laundry that deponent suspects and believes that one certain Clarence Lampkin stole or took said property, and that said property (or a part thereof) is concealed on or about the premises of Barbara Fowler in said Parish and State, said property being described as follows:

'Item of Clothing

'* * *

'WHEREFORE, deponent prays for process to search the premises of said Clarence Lampkin and Barbara Fowler as provided by law.

'* * *'

That same night, September 19, 1967, said Judge Jones issued a search warrant which commanded the Sheriff of Lincoln Parish or any of his deputies 'to make a diligent search at nighttime of the dwelling and/or the premises of the said Clarence Lampkin and Barbara Fowler.' ¹ The search ensued, and clothing, the evidence (shirts and jacket) sought to be suppressed, was found.

At the hearing before trial of the motion to suppress, Officer Lester testified that he knew where Lampkin was living, being able to go directly to his door, but that at the time the search warrant issued, he didn't recall the house number; he said that he explained that to the judge. He further testified with respect to his knowledge of Lampkin's past behavior. All events connected with the offenses committed in Ruston led Officer Lester to strongly suspect Lampkin as the person who had burglarized S and L Laundry on September 17, 1967.

We have read the testimony adduced at the hearing of the motion to suppress and conclude that the ruling of the trial judge was correct. There was probable cause for the issuance of the search warrant; the place to be searched was designated, and the thing to be seized, 'clothing,' was recited. ² Officer Lester was a credible person. Likewise, defendant did not bear his burden of proving that the evidence, 'clothing,' should have been suppressed. LSA-C.Cr.P., Art. 703. We find that the following per curiam of the trial judge to the instant bill is correct:

'The evidence taken on the Motion is attached to the Bill of Exception. Without reviewing the evidence, it is submitted that the officer had probable cause necessary for the issuance of the search warrant, especially since the defendant was a known burglar; since he has burglarized other cleaning establishments; used similar methods; since he had almost gotten caught in the Krousel Shoe Shop burglary where tools taken from the Service Cleaners burglary were found; and since he had placed clothes in a celophane bag in the Service Cleaner burglary in the same way as was done at the S & L Laundry burglary; and many other facts related by Officer Lester. These and other facts were related to Judge Fred W. Jones, Jr., and after satisfying himself that probable cause was shown, issued the search warrant.

'It is believed that the designation of the place to be searched as the 'premises of Clarance Lampkin and Barbara Fowler's was sufficient. Barbara Fowler was defendant's sister. Her place of residence, as well as that of the defendant, was well known. It was the only 'premises' these persons had in the Town of Ruston.

'The property 'Items of Clothing' to be searched for is modified by the prior statement that the search was being made for personal property of S & L Laundry stolen from said Laundry.

'We believe that search and seizure to have been fully legal.'

Bill of Exceptions No. 1 is without merit.

BILL OF EXCEPTIONS NO. 2

Bill of Exceptions No. 2 was reserved when the trial judge refused defendant's challenge for cause of the prospective petit juror Jimmy W. Washam. A peremptory challenge (defendant's twelfth peremptory challenge) was exercised by counsel for the defendant, and the prospective juror was excused.

When questioned by counsel for the defendant, Washam testified that he would believe the defendant guilty if he, the defendant, did not take the stand in his behalf. He later stated that he would abide by the instructions of the court if the court told him that the failure of the defendant to take the witness stand should not be held against him.

Under the circumstances of this bill, we do not find that defendant was prejudiced by using his twelfth peremptory challenge on the prospective juror Washam. Counsel for defendant was later permitted to exercise a thirteenth permptory challenge, which extra peremptory challenge cured defense counsel's objection. The jury which tried defendant was composed of twelve jurors. No alternate jurors were called and empaneled. Defendant was entitled to twelve peremptory challenges; however, additional peremptory challenges could have been used only against alternate jurors. ³ Bill of Exceptions No. 2 is without merit.

BILL OF EXCEPTIONS NO. 3

Bill of Exceptions No. 3 was reserved when the trial court refused defendant's challenge for cause of the prospective juror A. S. Johnson.

Defense counsel urged that Johnson had a fixed opinion as to the guilt or innocence of the accused.

We find no merit in this bill. The prospective juror stated that be thought he would be governed by what was revealed at the trial. He also stated that from what he had read in the newspapers, he had not formed or expressed any fixed opinion as to the guilt or innocence of the defendant.

Bill of Exceptions No. 3 is without merit.

BILL OF EXCEPTIONS NO. 4

Bill of Exceptions No. 4 was reserved when the trial court overruled defense counsel's motion for a mistrial.

Counsel...