State v. McAllister

• Decision Date: 18 February 1963
• Docket Number: No. 46337,46337
• Parties: STATE of Louisiana v. Bobby Milton McALLISTER.
• Court: Louisiana Supreme Court

Page 557

150 So.2d 557

244 La. 42

STATE of Louisiana v. Bobby Milton McALLISTER.

No. 46337.

Supreme Court of Louisiana.

Feb. 18, 1963.

Rehearing Denied March 25, 1963.

Edward B. Dufreche, Ponchatoula, Gordon Causey, Hammond, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Duncan S. Kemp, Dist. Atty., W. M. Dawkins, Asst. Dist. Atty., Leonard E. Yokum, Asst. Dist. Atty., for plaintiff-appellee.

HAMLIN, Justice.

The defendant appeals from his conviction and sentence to death for the murder of John O'Brien on July 26, 1960. LSA-R.S. 14:30.

During the course of trial some confusion arose as to the numbering of bills of exceptions, but we find from the record that the trial judge assigned numbers to them; as thus numbered, we are presented with ten bills of exceptions for our consideration.

Bill of Exceptions No. 1 was reserved when the trial judge overruled and denied defendant's motion to quash the indictment filed against him.

In substance, the motion to quash was leveled primarily at the insufficiency of the indictment insofar as it failed to meet and satisfy the requirements of the LSA-Constitution of 1921, particularly Article I, Sections 9 and 10. In brief filed in this Court counsel argue:

'It is respectfully submitted that in this case, the indictment does not sufficiently inform Bobby Milton McAllister of the nature and cause of the accusation against him. It is further submitted that this deficiency cannot be corrected by a bill of particulars.

'It is further submitted that the code of criminal procedure as adopted in 1928 and particularly Article 235 insofar as it provides for a short form of indictment for murder, is unconstitutional for the reasons set forth above and in the original motion to quash.' ¹

The Bill of Indictment recites in part:

'That, Calvin Newman Carney and Bobby Milton McAllister, acting together, aiding and assisting each other, late of the Parish of Tangipahoa, on the 26th day of July in the year of Our Lord One Thousand Nine Hundred and Sixty with force and arms in the Parish of Tangipahoa, aforesaid, and within the jurisdiction of the Twenty-First Judicial District Court of Louisiana, for the Parish of Tangipahoa, murdered John O'Brien, in violation of Article 30 of the Louisiana Criminal Code.' ²

LSA-R.S. 15:235 provides that the following form of indictment may be employed in the case of a charge of murder: 'A.B. murdered C.D.'

In State v. Fulghum, 242 La. 767, 138 So.2d 569, the defendant was charged with murder under the short form of indictment; he filed a motion to quash, averring that insofar as LSA-R.S. 15:235 related to the crime of murder it was unconstitutional, null, and void, for the reason that it did not require the recital of any facts constituting a crime under the laws of Louisiana; he also contended that he was deprived of certain enumerated constitutional rights. We found no merit in the contentions, stating that the constitutionality of LSA-R.S. 15:235 had been set at rest. We said, 'This Court has found that a murder indictment, drawn in short form, adequately informed the defendant of the nature and cause of the accusation. * * *' See, State v. Elias, 234 La. 1, 99 So.2d 1; State v. Scott, 223 La. 769, 66 So.2d 802; State v. Holmes, 223 La. 397, 65 So.2d 890.

Defendant herein argues, however, that in State v. Straughan, 229 La. 1036, 87 So.2d 523, this Court recognized that the specific short forms were not sufficient in all instances; ³ he urges insufficiency in the indictment.

In State v. Eyer, 237 La. 45, 110 So.2d 521, this Court explained the Straughan case, supra, ⁴ by stating: 'The Straughan case does not support the defense contention. On the contrary, it recognizes a long line of decisions of this court which hold that the short forms set out in R.S. 15:235 for charging such well-defined crimes as murder, theft, simple and aggravated rape, etc., meet the generally accepted test for constitutional sufficiency. The Straughan case is only authority for the proposition that the amendment to this section by the 1944 legislature, which sought to permit the state thereunder to charge an accused in either an indictment or information by 'using the name and article number of the offense committed,' was unconstitutional.'

Murder, being a well defined crime, may therefore be charged in the short form of indictment as employed herein.

Bill of Exceptions No. 1 is without merit.

Bill of Exceptions No. 2 was reserved to the overruling and denying of defendant's motion to have the court declare insufficient the answers to the bill of particulars filed by the district attorney; the motion recites in part:

'* * * your mover cannot safely conduct his defense in view of these vague and general answers filed by the Honorable District Attorney herein, and your mover respectfully submits that said answers are vague and general in the following respects, to-wit:

'2. 'If the defendant is charged with murder, under what codal article and/or subsection is he being prosecuted?' This question was answered 'Defendant is charged under Article 30 of the Louisiana Criminal Code both subsections.' The indictment makes no mention of the subsections under which defendant is charged and therefore the District Attorney should choose which subsections he intends to use rather than attempt to use a general catch-all answer and defendant is entitled to know the exact subsection in order to prepare his defense.

'8. 'State what the cause of causes of John O'Brien's death were and the date and time of the same?' This question was answered 'Decedent's death was caused by wounds inflicted by the pistol of the defendant in the early morning hours of the date charged in the indictment.' The defendant is entitled to know the exact time of death in order to properly prepare his defense and therefore this answer should be deemed insufficient for lacking such pertinent information.

'Question number 9 lacks the same information and is accordingly insufficient. * * *'

LSA-R.S. 14:30 provides that:

'Murder is the killing of a human being,

'(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

'(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated rape, armed robbery, or simple robbery, even though he has no intent to kill.

'Whoever commits the crime of murder shall be punished by death.'

In State v. Rowan, 233 La. 284, 96 So.2d 569, this Court stated that Article 30 of the Louisiana Criminal Code describes two sets of circumstances under which the crime of murder can be committed. We also said that the crime could be committed under any one of the two sets of circumstances as well as under a combination of the circumstances, set out in Subsections (1) and (2). We then held, 'The State's answer to the motion for a bill of particulars shows that the crime in the instant case is alleged to have been committed under circumstances set out in both subsections of the article. In short, murder can be committed under Subsection (1) or under Subsection (2) of the article or under both subsections at the same time, which is exactly what is alleged to have happened in the instant case. Consequently the judge erred in ordering the State to elect.' See, State v. Thomas, 240 La. 419, 123 So.2d 872.

Under the above jurisprudence the trial judge was correct in the instant case in not ordering the State to allege under which subsection of LSA-R.S. 14:30 it was proceeding. In its answers to Bill of Particulars the State said that it was attaching a photostatic copy of a statement made by the defendant which was self-explanatory. This statement, later introduced in evidence as defendant's confession, supplied ample facts for counsel to understand that the State had charged defendant under both Subsection (1) and Subsection (2).

The State's answer, 'Decedent's death was caused by wounds inflicted by the pistol of the defendant in the early morning hours of the date charged in the indictment,' to Question No. 8, and the statement annexed to the answer, supplied information as to the cause of death and as to the time of death.

Question No. 9 read, 'If the defendant is being charged and prosecuted under Article 30, Subsection 2, what was the date and time of the perpetration or attempted perpetration of any felony on the part of the defendant?' The State answered that the date and time were the same as those set forth in its answer to Question No. 8.

We agree with the trial judge that the answers supplied by the State were sufficient to inform the defendant of the nature of the charges preferred against him.

Bill of Exceptions No. 2 is therefore without merit.

Bill of Exceptions No. 3 was reserved to the trial court's overruling and denying a motion of defendant's counsel for a psychiatric examination of the defendant.

The events leading to the reservation of this bill are to the effect that the defendant was arraigned on November 10, 1960 and plead 'Not Guilty.' His counsel was given thirty days to file any technical pleadings; a motion for a bill of particulars was filed December 13, 1960. Answers were filed May 18, 1961; included therein was a statement which was later introduced in evidence as the confession of the defendant. The answers to the motion for a bill of particulars were received by counsel for the defendant no later than two days after they were filed. On June 5, 1961, the motion to quash was taken up, argued and overruled; counsel for the defendant then filed the following motion for a lunacy commission to examine the defendant:

'That as the attorneys for Bobbie Milton McAllister, the defendant herein, it is our belief that the said defendant is not mentally capable of assisting in his defense, because of his present mental condition.

'That the defendant, Bobbie Milton McAllister, was at the...