State v. Melerine

• Decision Date: 16 February 1959
• Docket Number: No. 44318,44318
• Citation: 109 So.2d 471,236 La. 930
• Parties: STATE of Louisiana v. Celestine MELERINE, James Licciardi, and Carlo P. Gioe.
• Court: Louisiana Supreme Court

Page 471

109 So.2d 471

236 La. 930

STATE of Louisiana v. Celestine MELERINE, James Licciardi, and Carlo P. Gioe.

No. 44318.

Supreme Court of Louisiana.

Feb. 16, 1959.

Rehearing Denied March 23, 1959.

F. Irvin Dymond, John P. Dowling, Russell J. Schonekas, George W. Reese, Jr., New Orleans, for defendants-appellants.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., L. H. Perez, Dist. Atty., L. H. Perez, Jr., 2nd Asst. Dist. Atty., New Orleans, August A. Nobile, Jr., Sp. Counsel, Chalmette, for appellee.

HAMLIN, Justice.

The defendants, Celestine Melerine, James Licciardi, and Carlo P. Gioe, were charged by bill of information with malfeasance in office,¹ a crime prohibited by LSA-R.S. 14:134. Carlo P. Gioe was not tried, the district attorney having moved for the severance of said Carlo P. Gioe from the trial and the trial court having granted the severance.

Appellants, Celestine Melerine and James Licciardi, were tried, found guilty, and each was sentenced on each count to serve three months in the parish jail and pay a fine of $500, in default of payment thereof to serve sixty additional days in the parish jail. They have appealed to this Court, presenting for our consideration twenty-two bills of exceptions.

Bill of Exceptions No. 1 was reserved to the refusal of the trial judge to grant defendants' motion to have the District Attorney, Leander H. Perez, recused on the ground that he had a personal interest adverse to that of the prosecution. Such personal interest, which was denied by the district attorney, was set forth as follows:

'1) That Leander H. Perez, District Attorney, had a personal interest, adverse to that of the prosecution herein.

'2) That he was a member of a law firm or partnership composed of said Leander H. Perez, Leander H. Perez, Jr., and Chalin O. Perez, engaged in the practice of law under the name of Leander H. Perez and Sons.

'3) That Leander H. Perez, Jr., a son and a law partner of said Leander H. Perez, was an Assistant District Attorney for the Parish of St. Bernard; that the defendants and their adherents controlled the policy making actions of the Police Jury of the Parish of St. Bernard by one vote; that said police jury was composed of members of different factions, the Melerine-Licciardi faction being in the majority by one vote; that proceedings seeking the removal from office of said Celestine Melerine and James Licciardi had been instituted against them under the Nos. 6192 and 6193 of the docket of said court; that one of the grounds urged by plaintiff in said removal proceedings was identical to the charge in these proceedings; that, therefore, the outcome of the instant proceedings had a very important bearing upon said action for removal from office.

'4) That movers and Leander H. Perez belong to opposing political factions, and that the removal of movers from office would accrue to the political benefits as well as the financial benefits of said Leander H. Perez and members of his political faction.

'5) That when movers and their political faction came into power by obtaining a majority vote of the Police Jury of St. Bernard Parish, that body reduced the monthly salary of Leander H. Perez, Jr., from $200.00 per month to $62.50; that should movers be removed from office, such removal would create an opportunity for the restoration of the salary of Leander H. Perez, Jr., to the sum of $200.00 per month.

'6) That when movers came into power as aforesaid, said body ceased the payment of a salary of $225.00 per month to Miss Rose Church, secretary of said Leander H. Perez, Sr., causing said Perez to have to pay said secretary from another source; that the removal from office of movers would create an opportunity for the restoration of said salary to Miss Rose Church and would thus operate to the benefit of the said Leander H. Perez, Sr.

'7) That when movers came into power as aforesaid, said body ceased the payment of a salary of $350.00 per month to Anthony Licciardi, an investigator for the District Attorney, thus necessitating the payment of said salary by the said Perez from another source; that the removal of movers from office would create an opportunity for the restoration of said salary by the police jury to said Anthony Licciardi.

'8) That when movers came into power as aforesaid, said body ceased the payment of a salary to Rudolph McBride, an Assistant District Attorney, thus necessitating the payment of said salary from another source by said Perez.'

The causes for recusation of a district attorney, as set forth in LSA-R.S. 15:310, are:

'(1) If said district attorney be related to the party accused or to the party injured within the fourth degree, or be his father-in-law, or his son-in-law, or his brother-in-law, or be the husband of the accused or of the party injured;

'(2) If said district attorney shall have been employed or consulted as attorney for the accused before his election or appointment as district attorney;

'(3) If said district attorney shall have a personal interest adverse to that of the prosecution.'

The persons referred to in defendants' motion, supra, are not the parties accused. The evidence discussed in the trial judge's per curiam to the bill does not show that they have employed the district attorney as counsel or that they have asked that he intercede for them.

Leander H. Perez, Jr., Second Assistant District Attorney, testified that he, the district attorney, and Chalin O. Perez, were not engaged in the practice of law as a law firm or partnership. There is no allegation or showing that the district attorney would have to personally pay any part of the monthly salaries of the persons referred to in defendants' motion. The interest that a third person might have in keeping his job or that he will not suffer a reduction in pay is a personal interest, but it cannot be classed as an interest adverse to the prosecution. To say that an officer of the court, elected by the people, has an interest adverse to the prosecution because third parties will profit if the accused are removed from their positions or offices is mere speculation.

Article IX, Sec. 7, Louisiana Constitution of 1921, LSA, provides for the filling of such offices as are herein involved by the appointing power during the removal proceedings. The district attorney is therefore disassociated with the offices insofar as the appointment of successors is concerned.

The State sets forth in its brief that the suits for removal referred to by the defendants were filed by the district attorney in his official capacity and in the discharge of a mandatory duty provided by Article IX, Secs. 1, 6 and 7, of the Louisiana Constitution of 1921, which requires a district attorney, without pecuniary or personal reward, to file removal suits against parochial or ward officers when requested in writing by twenty-five citizens and taxpayers, and that the record in these removal cases (referring to Perez v. Licciardi, 236 La. 236, 107 So.2d 455, in which this Court acted upon an application for writs) show that more than the necessary amount of citizens and taxpayers requested the district attorney to institute the suits for removal. This is not contradicted.

We find no direct connection between the removal proceedings and the present prosecution. In Stanley v. Jones, 197 La. 627, 2 So.2d 45, 48, we stated:

'The next question requiring consideration is defendant's plea of prematurity, which is predicated on the contention that defendant has never been charged, placed on trial, or convicted in the criminal courts on any of the charges set out in the petition, a prerequisite for the institution of a suit for the removal from office. Defendant's brief does not contain any argument in support of the plea. For our own part, we do not find any merit in it.'

The above statement means that removal proceedings and a criminal prosecution against the same defendants are not interdependent; the mere fact that the district attorney has filed suit for the removal of the defendants from office reflects no reason for recusing him in a criminal prosecution.

Defendants contend that the case of State v. Tate, 185 La. 1006, 171 So. 108, 112, has extended LSA-R.S. 15:310 so as to require recusation in cases where the district attorney has a personal interest in the conviction rather than a personal interest adverse to that of the prosecution.

In the Tate case, supra, the defendant urged as grounds for the recusation of the district attorney the fact that he had previously acted as counsel for various insurance companies in proceedings against the defendant for damages alleged to have resulted from the crime for which he was being prosecuted. In upholding the defendant's contention this Court stated:

'In conducting a criminal case the prosecuting attorney must be fair and impartial, and see that defendant is not deprived of any constitutional or statutory right, because he is a quasi judicial officer. 18 C.J. § 42, pp. 1315, 1316.

'This rule, founded on justice and fair dealing, we think is intended not only to restrain the offer of illegal evidence or the violation of the orderly rules of procedure by prosecuting officers, but also to require their recusation in those cases in which their interest, directly or indirectly, may be such as to cause them to sacrifice impartial justice to personal advantage.

'The statutory requirement that the district attorney shall be recused where 'he shall have a personal interest adverse to that of the prosecution' is broad enough to cover a case where he is of counsel in a civil action against the accused, based substantially on the same or on closely related facts.'

The Tate case, supra, is not apposite. There the district attorney definitely had an interest adverse to the prosecution.

This Court, in State v. Henry, 200 La. 875, 9 So.2d 215, 217, interpreted Article 310 of the Code of Criminal Procedure, which is now incorporated in...