State v. Lanthier

• Decision Date: 04 November 1942
• Docket Number: 36821.
• Citation: 201 La. 844,10 So.2d 638
• Court: Louisiana Supreme Court
• Parties: STATE v. LANTHIER.

10 So.2d 638

201 La. 844

STATE v. LANTHIER.

No. 36821.

Supreme Court of Louisiana

November 4, 1942

Plauche & Plauche, of Lake Charles, for defendant and appellant.

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

HIGGINS Justice.

The accused was charged in a bill of information with the offense of cattle stealing. He was arraigned, pleaded not guilty, and the case was fixed for trial on May 22, 1942. After a trial before a jury of twelve, a verdict of guilty as charged was returned on May 28, 1942. He filed a motion for a new trial, which was overruled, and the court sentenced him to a term of not less than sixteen months nor more than forty-eight months in the State Penitentiary.

The defendant appealed, and relies upon seven bills of exception in asking for the annulment of the verdict of the jury and the sentence of the court.

We shall first consider bill of exception No. 6, which the defendant's counsel particularly stressed in his brief and oral argument in this Court. The record shows that when the sheriff and two of his deputies of Jefferson Davis Parish were on the stand, the State sought to lay the foundation for the introduction of a purported confession of the accused of the crime charged. Upon motion of the defendant's attorneys the jury was withdrawn from the courtroom. After the district attorney had questioned the witnesses in order to affirmatively show that the alleged confession was free and voluntary and not made under the influence of fear duress, intimidation, menaces, threats, inducements or promises, counsel for the defendant objected to the introduction of any purported confession until the defendant had an opportunity to traverse the testimony of the sheriff and his deputies by evidence to be produced by him tending to establish that the confession was not free and voluntary. The assistant district attorney thereupon stated to the court that the accused did not have any right to inject his defense evidence into the State's case in chief, and that the accused must await the time when he might offer such proof in his defense. The trial judge ruled that the defendant's right to traverse at that time was limited to a cross-examination of the three State witnesses, and stated:

'The Court has never heard of the privilege or practice of introducing testimony to traverse this sort of qualification. The State must show by prima facie evidence that it is voluntary. If you want to show that that is not true that is a matter of defense. The Court never heard of the right to introduce testimony to show that it was not voluntary before the evidence is introduced here. The Court thinks it is safe in overruling the objection. The objection is overruled.'

From the transcript it appears that the defendant's attorneys persisted in claiming the right of the accused to prove by competent evidence that the purported confession was not free and voluntary, and to have the judge rule upon the admissibility or inadmissibility of the alleged confession depending upon whether or not his Honor concluded that the proper foundation had or had not been laid. In each instant the assistant district attorney objected to the defendant offering evidence while the State was placing before the jury its evidence in chief, and insisted that the only time the defendant could offer such evidence was when he was placing before the jury the proof of his defense. The trial judge maintained the State's position and permitted the alleged confession to go before the members of the jury when they were returned to the courtroom, without the defendant having an opportunity to traverse the State's testimony on this issue.

Article 451 of the Code of Criminal Procedure reads as follows:

'Condition precedent to use of confession--Free and voluntary rule.--Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.' (Brackets ours.)

In Marr's Criminal Jurisprudence of Louisiana, Volume 2, page 835, the rule is stated as follows:

'* * * When a witness has testified that the confession was not induced by promises or threats, it is reversible error to refuse to allow accused to show that he was forced to make the offer in question.'

See, also, Wigmore on Evidence, 3rd Edition, Volume 3, pages 348, 349, where the write states the law as follows:

'The Judge must hear the defendant's evidence (including evidence from cross examination of the prosecution's witnesses) upon the issue of voluntariness; * * *'

The author supports the text by citing a New York case as follows:

'New York: 1890, People v. Fox, 121 N.Y. 449, 24 N.E. 923 (written confession; the judge's rejection of the defendant's evidence until the defendant's own case was introduced, under a promise to strike out the confession if then found to be inadmissible, held erroneous); * * *'

In the case of State v. Platte, 34 La.Ann. 1061, the accused was charged with the crime of larceny. The person whose property was said to have been stolen was sworn as a witness and questioned with reference to an alleged confession or offer to compromise made by the accused. His attorney objected on the ground that a foundation had not been laid, showing that the purported confession was free and voluntary. The witness was then interrogated upon that subject and stated that there had been no threats or promises or inducements made to the accused. His counsel then sought to traverse with evidence tending to show that the purported confession was not free and voluntary. The trial judge ruled that the defendant had no right to show those facts at that time. A bill of exception was reserved.

In holding that the ruling of the...