State v. Mann

• Court: Louisiana Supreme Court
• Writing for the Court: HAMITER
• Citation: State v. Mann, 250 La. 1086, 202 So.2d 259 (La. 1967)
• Decision Date: 30 June 1967
• Docket Number: No. 48493,48493
• Parties: STATE of Louisiana v. Charles Reid MANN.

Page 259

202 So.2d 259

250 La. 1086

STATE of Louisiana v. Charles Reid MANN.

No. 48493.

Supreme Court of Louisiana.

June 30, 1967.

Rehearing Denied Oct. 4, 1967.

Sam J. D'Amico, Baton Rouge, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for appellee.

HAMITER, Justice.

Charles Reid Mann, the defendant, was charged in a bill of information filed in this cause with the 'theft of a 1959 Cadillac convertible, valued at $2064.85, the property of Love Motor Company, Baton Rouge, Louisiana.' In case No. 48,494, on the docket of this court, 202 So.2d 264, the bill of information recited that he 'committed a theft of a Petri Flex-V, 35 Millimeter Camera with black case and flash attachment, valued at $148.63, the property of Kadair's Records and Camera, Inc., Baton Rouge, Louisiana.'

In both cases, consolidated and tried together, the jury returned verdicts of guilty as charged. The trial judge thereafter sentenced the defendant to serve a total of twenty years in the state penitentiary at hard labor.

On his separate appeals in the two cases, the defendant relies on nine bills of exceptions for obtaining reversals of the convictions and sentences. Since the bills herein are the same as those in the other cause we shall set forth our detailed discussion of them in this opinion and render separate decrees.

Prior to the filing of the present informations the defendant had been charged with the forgery of two checks, in violation of LRS 14:72, which he allegedly issued in obtaining the above described automobile and camera. To those charges he pleaded guilty, and he was sentenced to the state penitentiary.

While serving the sentences thus imposed, the defendant initiated a habeas corpus proceeding in the Twentieth Judicial District Court wherein he urged that the informations on which he entered his guilty pleas were fatally defective in that they alleged no crime under our laws, because they showed that the forgeries charged had been committed by the use of an alias and under the jurisprudence of this state the issuance of checks in such manner cannot and does not constitute the crime of forgery. As a result of the habeas corpus proceeding the defendant was discharged from his prior sentences. It does not appear that the state appealed from the ruling.

Thereafter, the instant informations, in the short form, were filed. And to them the defendant tendered motions for bills of particulars, he requesting to be informed as to the method used by him in perpetrating the alleged thefts. The state's answers to the motions declared that each theft had been committed by 'Marking and knowingly issuing a forged check.' (It is conceded that the checks involved in the present cases are the same as those on which the respective forgery charges were previously brought.)

Bill of exceptions No. 1 was reserved to the court's overruling the defendant's pleas of former jeopardy, they being based on his having pleaded guilty to the previous forgery charges. The bill is without merit. In overruling the pleas the trial judge correctly observed: 'In order to have a valid plea of autrefois convict or double jeopardy, there must be a conviction on a valid indictment, and it is the Court's opinion that the bills of information charging the accused with the crimes were invalid and, therefore, double jeopardy will not apply.' See LRS 15:279, State v. Garon et al., 161 La. 867, 109 So. 530, State v. Gendusa, 193 La. 59, 190 So. 332, and State v. Williams, 213 La. 1105, 36 So.2d 400.

Nor do we find any substance in bill of exceptions No. 5 which was reserved when the trial court overruled the defendant's objection to the admission of an oral confession. The basis of the objection was the contention that the confession had been given by the accused as a result of a promise by Deputy Sheriff Jack Thornton to him (while he was in custody) that if he would plead guilty his wife would not be charged (or that if she were charged her sentence would be suspended), and that as the state was Unable to produce Thornton the confession should not be admitted.

After the state had laid the foundation for introducing the confession by the testimony of certain law officers to the effect that no force, threats, promises or any undue influence had been used to obtain it--but without the testimony of Thornton--the defendant took the stand and testified that Thornton had made the promise as contended. However, he also stated that Detective Bonanno was present when it was made and that the latter should have heard it. The prosecution then showed that Thornton was no longer with the sheriff's office and that he was out of the state. Also, Bonanno was recalled, and he declared unequivocally that at no time did he hear Thornton make such a promise.

After reviewing the evidence taken in connection with the admission of the confession we conclude that it amply sustains the trial court's conclusion that it was freely and voluntarily made without any force, threats, promises or inducements.

In this court (but not in the trial court) the defendant urges that 'It is undisputed that the defendant was never advised of his right to counsel or any of those rights guaranteed him under the U.S. Constitution and rulings thereon by the U.S. Supreme Court. Miranda v. State of Arizona, 86 Sup.Ct. 1602, 384 U.S. 436 (16 L.Ed.2d 694). Escobedeo (Escobedo) v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758 (12 L.Ed.2d 977.)'

The procedure outlined in the Miranda case for the obtaining 'in custody' confessions is not applicable here inasmuch as the trial of these causes was held in October, 1965, prior to the rendition of the decision in that case in June, 1966. Such decision is not retroactive. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 and State v. Evans et al., 249 La. 861, 192 So.2d 103.

Nor is the Escobedo decision applicable to the circumstances of this case. Therein the court held that an 'in custody' confession of an accused, even though no formal charge had yet been brought against him, was inadmissible When he had requested and been denied permission to consult with his attorney. It is not asserted herein that the accused requested counsel. To the contrary, Deputy Sheriff Bankston testified that prior to his making the confession the defendant had been advised that he had a right to an attorney. This was not denied by the accused when he later took the stand.

We find no error in the admission of the confession into evidence.

Prior to submission of the case defense counsel tendered to the court, in writing, the following special instructions to be read to the jury: 'SPECIAL CHARGE NO. 2. If you find by the evidence that this defendant used an alias, which alias was not any known person's name, and that he signed his alias to these checks, he did not commit forgery; therefore, the merchandise purchased by him was not paid for with forged checks.

'SPECIAL CHARGE NO. 3. The law and the jurisprudence of this state is that a person cannot forge a check by signing his own name. If a person commonly uses an alias, it is considered as much his name as his real name, and he does not violate the law by using such alias.

'SPECIAL CHARGE NO. 6. The mere use of a fictitious or false name may constitute false pretenses, but so long as the writing or check purports to be the act of the very person issuing it, and of no other, it is not forgery.'

On objection of the state's attorney the court refused to give the special instructions, to which ruling defendant reserved bill of exceptions No. 7. Moreover, besides so refusing, the judge in his general charges specifically declared to the jury that the state did not have to prove, and the jury did not have to find, that, in order to return verdicts of guilty of the thefts alleged in the informations, the defendant committed forgery of the checks. Objection to this statement was overruled, and bill of exceptions No. 8 was reserved.

In considering these bills it should be borne in mind, as we have previously pointed out, that the informations filed in the instant cases were in the short form permitted by LRS 15:235; that they merely recited that the accused had committed thefts of certain described properties; and that in response to motions for bills of particulars the state alleged in each case that the theft was perpetrated by the defendant's 'Making and knowingly issuing a Forged check.'

It is now well settled that when the state elects to use the short form indictment or information permitted by LRS 15:235, the accused is entitled to a bill of particulars setting out more specifically and in detail the offense charged. And this is particularly true when the alleged crime may be committed in a...