State v. Lejeune

• Decision Date: 13 December 1965
• Docket Number: No. 47863,47863
• Citation: 181 So.2d 392,248 La. 682
• Parties: STATE of Louisiana v. Francis LEJEUNE.
• Court: Louisiana Supreme Court

Page 392

181 So.2d 392

248 La. 682

STATE of Louisiana v. Francis LEJEUNE.

No. 47863.

Supreme Court of Louisiana.

Dec. 13, 1965.

Rehearing Denied Jan. 17, 1966.

Dugas, Bertrand & Smith, by Lucian C. Bertrand Jr., Lafayette, Michel Maroun, Shreveport, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Bertrand DeBlanc, Dist. Atty., J. Nolan Sandoz, Asst. Dist. Atty., for appellee.

FOURNET, Chief Justice.

The defendant, Francis Lejeune, having been charged in a bill of information with the crime of pandering in violation of R.S. 14:84 ¹ in that on July 29, 1964, he 'did intentionally maintain a place known as the Balanese Lounge located at 711 Graceland Avenue, in the City of Abbeville, Louisiana, where prostitution is habitually practiced,' appeals his conviction of attempted pandering and sentence to serve two and one-half years in the state penitentiary, relying for the reversal thereof on errors allegedly committed during the course of the trial, to which objections were timely made and seven bills of exception perfected.

The first bill of exception was reserved when the trial judge refused the defendant's motion for a change of venue, and, in the alternative, a continuance until public hostility subsided, being sought on the basis that he could not get a fair and impartial trial because of the prejudice engendered against him by the extensive publicity given his arrest and charge by the radio, television, and local weekly newspaper media. The next two bills were reserved during the hearing on the motion; the first one when the trial judge sustained the prosecution's objection to defense witness, Joe Choat, News Editor of the Abbeville paper, answering the question what he meant by the caption 'Most Wanted' which appeared under defendant's picture in the August 6, 1964, edition of the paper; the other one when, according to the recital in the bill, the trial judge refused to permit the answer of the witness to be recorded while defense counsel were perfecting the second bill.

The burden of establishing by legal evidence that the applicant for a change of venue could not secure a fair trial in the parish where he was charged for committing a crime, rests upon the applicant. R.S. 15:293, State v. Faciane, 233 La. 1028, 99 So.2d 333, and authorities cited therein. The test to be applied is whether there can be secured with reasonable certainty from the citizenry of the parish a jury whose members will be able to try the case uninfluenced by what they might have heard in the matter, and who will give the accused the benefit of any reasonable doubt which might arise from the evidence or from the lack thereof. State v. Wilson,240 La. 1087, 127 So.2d 158; State v. Scott, 237 La. 71, 110 So.2d 530; State v. Rogers, 241 La. 841, 132 So.2d 819. As pointed out in 22 C.J.S. Crim.Law § 196, p. 521, 'Newspaper articles and other media of publicity with reference to the crime, even when denunciatory of accused, are not in themselves sufficient to show prejudice, unless they so arouse public hostility as to preclude a fair trial.' See, also, State v. Rini, 153 La. 57, 95 So. 400; State v. Swails, 226 La. 441, 76 So.2d 523; Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98. The granting of a change of venue is to be exercised with caution and always rests in the sound discretion of the trial judge, whose ruling denying the motion for same will not be disturbed unless the evidence affirmatively shows his ruling was unfair and a clear abuse of judicial discretion. State v. Roberson, 159 La. 562, 105 So. 621; State v. Collier, 161 La. 856, 109 So. 516; State v. Wshington, 207 La. 849, 22 So.2d 193; State v. Pearson, 224 La. 393, 69 So.2d 512.

In his per curiam to the first bill, the trial judge, in our opinion, fairly summarized and evaluated the evidence and we think properly declined defendant's motion for a change of venue or a continuance, stating: 'Accused attempted to show, through various witnesses that he could not get a fair trial in Vermilion Parish because of the newspaper and other publicity. The witnesses which he placed on the stand were obviously interested and partial, with the exception of the witness Roy Hebert who testified he thought the accused was guilty but said that he, himself, could be fair and he further testified that he had never heard any one say that the accused was guilty. The other witnesses as follows Joseph Guidry knows him well; the accused is his customer; Gladstone Hebert, a taxi driver was obviously partial, the accused having given him substantial business; Percy Stutes, a former Deputy Sheriff who was discharged by the present Sheriff was obviously partial; Joseph Touchet, related by marriage. Additionally, he took a message to the Sheriff of Vermilion Parish for the accused, the message not being disclosed. The other witness used by the accused was Whitney Noel who testified that he could not answer for any one else and further that he thought that the accused could get a fair trial, although he, himself, had made up his mind. He didn't indicate which way. The State placed Mr. Charles LeBlanc, a former Sheriff of Vermilion Parish, Mr. Alcide Lene, Chief of Police of Abbeville, Louisiana, and Mr. Irby Hebert, Clerk of Court on the stand. Their testimony was substantially to the effect that the accused could be given a fair trial. Of the original list of 30 jurors the Court had excused 10 for medical and other reasons and two for lack of education, leaving a total of 18 jurors. The entire jury of five, in addition to the alternate, was chosen with no difficulty from these 18 veniremen.' Moreover, it is apt to observe that the jury was selected without the defendant having to exhaust all of his peremptory challenges; furthermore, the jury obviously entertained no prejudice against the defendant as it rendered a verdict of a lesser offense.

The next two bills are clearly without merit. As pointed out by the trial judge, the opinion of witness Joe Choat as to what he meant when he used the caption 'Most Wanted' under a picture of the defendant appearing in one of his newspaper articles, had no relevancy in determining whether the defendant could get a fair trial in the Parish of Vermilion, the criteria being the interpretation placed by the public generally on the phrase in connection with the article. Even so, however, he permitted the witness to answer and to have this testimony recorded.

In conformity with the three-day period allotted to the defendant within which to file pleas and motions at the time of his arraignment on September 21, 1964, the defendant filed a motion for a bill of particulars seeking answers to five specifications ² and on the date set for trial, December 7, 1964, filed a motion for a continuance based on the fact the District Attorney did not file his answer to the bill of particulars until that very day, whereupon the trial judge granted the continuance, ordering the District Attorney to amend his answer on the 8th and fixing the trial for the 10th of December, to which the defendant objected, claiming he could not properly prepare his defense and perfected a bill of exception. Another bill was reserved to the trial judge's ruling that the amended answer was sufficient.

Counsel for defendant concede the...