State v. Martinez

• Court: Louisiana Supreme Court
• Writing for the Court: PONDER
• Citation: State v. Martinez, 220 La. 899, 57 So.2d 888 (La. 1952)
• Decision Date: 18 February 1952
• Docket Number: No. 40590,40590
• Parties: STATE v. MARTINEZ et al.

Page 888

57 So.2d 888

220 La. 899

STATE v. MARTINEZ et al.

No. 40590.

Supreme Court of Louisiana.

Feb. 18, 1952.

Rehearing Denied March 24, 1952.

G. Wray Gill, New Orleans, for defendants-appellants.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden, Dist. Atty., Peter J. Compagno, Asst. Dist. Atty., and George J. Gulotta, Executive Asst. Dist. Atty., New Orleans, for appellee.

PONDER, Justice.

The defendants, Henry Martinez and Louis Bommarito, were tried for the crime of burglary and convicted. They pleaded guilty to being multiple offenders and were sentenced to serve eighteen years in the penitentiary. During the course of the trial, their counsel reserved twenty-five bills of exceptions.

Bill of exception No. 1 was levelled at the refusal of the trial judge to grant oyer of an oral statement made by Martinez, one of the defendants, at the time of his arrest concerning who was the owner of a revolver which was found in an automobile in the possession of Martinez, and to permit counsel for defendants to examine an envelope and its contents found therein. These statements made by the defendants were never reduced to writing. The rule that a defendant is not entitled to a pre-trial view or examination of evidence in the possession of the State was relaxed to the extent that a defendant is now granted pre-trial view of a written confession. State v. Dorsey, 207 La. 928, 22 So.2d 273. We were asked to extend the rule so as to give a pre-trial view of all statements of the accused, whether they be written or oral or in the nature of a confession or not. We again affirmed the holding in the Dorsey case and pointed out that all the defendant was entitled to was a pre-trial view of his written confession. We did not overrule the prior jurisprudence denying an accused a pre-trial inspection of written confessions of co-defendants, written statements of witnesses, or police reports in the hands of the enforcement officers. State v. Simpson, 216 La. 212, 43 So.2d 585.

Bill of exception No. 2 was taken to the overruling of a motion to quash the bill of information. The motion to quash is levelled at the date set out in the indictment on which the offense was committed. The defendants were charged with committing the crime between December 19, 1950 and December 20, 1950. Counsel contends that there is no date between December 19th and December 20th and that therefore the defendants were not charged with the certainty the law prescribes. The trial judge in his per curiam states that the State was unable to allege with certainty on which of the dates the offense was committed because the business establishment, alleged to have been entered, was closed on the night of December 19th and reopened in the daytime on December 20th, during which period of time the alleged burglary was committed. Counsel takes the position that a conviction of the offense would not afford the defendants a plea of former jeopardy in event they were sought to be tried again for the offense because of the uncertainty of the date. He cites authorities, the most recent of which is State v. Chanet, 209 La. 410, 24 So.2d 670. The bill of information meets the requirements set out in the Chanet case. It sufficiently informs the court of the offense in order that it might regulate the evidence during the trial; the accused is sufficiently informed of the nature and form of the accusation; and it is sufficient to support a plea of former jeopardy. The accused could not be again prosecuted for robbing that particular drug store on either of the dates set out in the indictment. Where it is alleged in an indictment or bill of information that an offense was committed on or about a certain date the words 'on or about' are surplusage and the real date is that which is specified. Where time is not the essence, the time stated in the indictment is immaterial as to the exact date so long as it precedes the date the indictment was returned. State v. McCarthy, 44 La.Ann. 323, 10 So. 673; State v. Guillot, 200 La. 935, 9 So.2d 235.

Bill of exceptions No. 3 was taken to the overruling of a motion for a continuance on the ground that the defendants could not at that time secure a fair and impartial trial because the public had been inflamed against the defendants by sensational stories published in the local press regarding offenses committed by them. A continuance was sought until the alleged public opinion had subsided. Counsel offered publications in evidence but there is no evidence to show that public opinion was aroused against the defendants or that they could not secure a fair and impartial trial. If counsel had seriously thought that the defendants could not secure a fair and impartial trial, in the Parish of Orleans, he should have moved for a change of venue and this matter could have been properly determined. The jurors who were challenged by counsel for the defendants for cause did not appear to be affected by the publications as they had not formed a fixed opinion or one that would not yield to evidence. Article 351, Code of Criminal Procedure, LSA-R.S. 15:351.

Bill of exception No. 4 was taken to the refusal of the trial judge, on objection of the State, to permit counsel to state that 'reasonable hypothesis' means 'guess' to a juror under examination on his voir dire. In cases of circumstantial evidence, the State must prove its case beyond a reasonable hypothesis, not beyond a reasonable guess. It must exclude every reasonable hypothesis of innocence. Article 438, Code of Criminal Procedure, LSA-R.S. 15:438.

Bill of exception No. 5 was taken to the refusal of the trial judge, on objection of the State, to permit counsel to question a juror on his voir dire as to whether he had read an article in the press, charging certain parties with an alleged offense wholly unrelated to the offense herein charged or the parties engaged in it. The ruling was correct.

Bill of exception No. 6 was taken to the refusal of the trial judge to permit defendants' counsel to exhibit an article in a newspaper to a juror who was being examined on his voir dire after the juror had testified that he did not remember reading the article. It appears that the juror later stated in his examination that he had not read the article. This bill presents nothing from which injury could flow.

Bill of exception No. 7 was taken to the overruling of the defendants' objection to the selection of jurors from the venire of Section 'E' for the reason that the defendants had not been served with a copy of the jury list from Section 'E' until the date of the trial. It appears that the jury venire in Section 'F' had been exhausted without completing the jury and that the remainder of the jurors were selected from the venire of Section 'E'. A mere reading of the second paragraph of Article 201 of the Code of Criminal Procedure, LSA-R.S. 15:201, demonstrates that the trial court was authorized to have the remaining jurors selected in this manner. State v. McKee, 170 La. 630, 128 So. 658. Moreover, counsel does not allege or contend that the defendants could not obtain a fair and impartial trial at the hands of jurors selected from the venire of Section 'E' and no injury has been shown. In the absence of such showing, the defendants have no legal complaint. State v. O'Day, 188 La. 169, 175 So. 838.

Bill of exception No. 8 was taken to the overruling of a challenge for cause urged against a prospective juror. The juror testified on his voir dire that he had read the headlines of an article in the press but did not read the article itself. The juror testified that his place of business had been robbed four times but that would not create any prejudice against the defendants. Counsel asked the juror the question, viz.: 'You feel that in spite of the fact your place was burglarized four times, if it comes to a question of veracity in favor of the defendants as against evidence of the State, that fact would play no part?' The juror answered 'No' and counsel challenged him for cause which was overruled by the court. Counsel has cited authorities from other states and decisions of federal courts to support his contention. We are governed by statutory law. Under the provisions of Article 350, Code of Criminal Procedure, LSA-R.S. 15:350, causes for challenge are either general or special. It is general when the juror lacks some qualifications required by law of jurors in general. A special challenge for cause is where the juror, though generally qualified, is disqualified from serving in the case in which he is tendered. The challenge for special causes are set forth in Article 351, Code of Criminal Procedure. A juror under the article can be challenged if he is not impartial. There is nothing in the testimony of the juror nor evidence to show that the juror is prejudiced against the defendants. We cannot assume that he is biased against the defendants merely because his place of business had been burglarized.

Bill of exception No. 9 was taken to the overruling of a challenge for cause to a prospective juror whose home had been burglarized some five years ago. He testified that it would not influence him in the trial of the case and that he did not have any prejudice against the defendants. Our answer to bill of exception No. 8 is sufficient answer to the question here presented.

Bill of exception No. 10 presents the same question raised in bill of exception No. 7, which we have disposed of.

Bill of exception No. 11 presents the same question raised in bill of exception No. 1, which we have disposed of.

Bill of exception No. 12 was taken to a question propounded by the State to a witness, viz.: 'While you were on Canal and Decatur on the morning of December 20th at one o'clock did anything attract your attention?' Counsel contends that the question suggested that the defendants were acting or behaving in a suspicious manner. No authority has...