State v. Murphy, 25948

CourtSupreme Court of Louisiana
Writing for the CourtDAWKINS, J.
Citation97 So. 397,154 La. 190
PartiesSTATE v. MURPHY et al
Docket Number25948
Decision Date11 July 1923

97 So. 397

154 La. 190

STATE
v.
MURPHY et al

No. 25948

Supreme Court of Louisiana

July 11, 1923


[97 So. 398]

Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Prentiss B. Carter, Judge.

John Murphy and another were convicted of murder, and they appeal.

Conviction and sentence set aside, and case remanded.

Gordon W. Goodbee, of Franklinton, Luther W. Felder, of Tylertown, Miss., and Chandler C. Luzenberg, of New Orleans, for appellant Rester.

Gordon W. Goodbee, of Franklinton, for appellant Murphy.

A. V. Coco, Atty. Gen., T. S. Walmsley, Asst. Atty. Gen., J. Vol Brock, Dist. Atty., of Franklinton (Delos R. Johnson, O. H. Carter, and M. I. Varnado, all of Franklinton, and B. B. Purser, of Amite, of counsel), for the State.

OPINION [97 So. 399]

[154 La. 194] DAWKINS, J.

Defendants appeal from a conviction of murder and sentence of death. Twenty-eight bills of exceptions were retained during the course of the trial, but only a few of them have been urged before this court.

Bills Nos. 1 and 2.

The first bill was to the refusal to allow defendants to file an answer to the written objections of the state to a change of venue sought by the defense; and the [154 La. 195] second was reserved to the further refusal to allow a supplemental motion for a change of venue.

Nothing having been said, either in oral argument or in brief about these bills, we take it that both have been abandoned. In any event, no proof was tendered, and the jury was obtained without exhausting the peremptory challenges of the defendants; hence the ruling must stand.

Bill No. 3.

The third bill covers the overruling of a motion for a continuance. The judge's per curiam thereon is as follows:

"The motion for the continuance does not state the facts fully. On the day of the arraignment, the accused being without counsel, the court appointed Gordon W. Goodbee to defend them, and at that time the court informed the defendants themselves that if they desired to employ additional counsel they would have ample time to do so. No request was made for more time or any intimation given the court that more time was desired until the case was called for trial, although counsel had full knowledge that a jury was being drawn to try this case and that all preparations were being made for the trial; witnesses for state and defense being summoned, etc.

"Mr. Goodbee was appointed by the court and is an experienced lawyer, and in length of practice is the oldest at the bar. He served four years as district attorney of this district, has been an active practitioner in both civil and criminal matters for more than twenty years, and therefore was well qualified to represent the interest of the accused. The accused Rester employed Mr. Goodbee after his appointment and paid him a handsome fee. From March 9th, on the day of his appointment, to March 19th, on the day the case was assigned for trial, no court was held at Franklinton, and Mr. Goodbee devoted his entire time in preparation of this case for trial. At once after his appointment he was afforded every opportunity for conference with the accused, the members of their families, and their friends and was in constant conference during said time.

"Mr. Felder, the assistant counsel, visited Franklinton within two or three days after the case was assigned in conference with Mr. Goodbee and relatives of the accused Rester, and while the court does not say that he was employed earlier than was stated in the motion, [154 La. 196] the court does say that it construes his statement to simply mean the final payment of the fees which had been agreed upon before was not made until the time stated, that the employment or agreement was made several days prior. Mr. Felder lives within forty-five minutes drive of the courthouse, has been active in criminal cases before this court for several years, and is a lawyer with a wide reputation.

"The motion for a continuance was purely for delay, and the defendants were not prejudiced in any way, and no legal rights in their favor were violated by the denial of the motion. The trial of the case convinced the court that the ruling of the court was correct. There was no demand for witnesses, no request for delay for conference, and no legal rights denied the defendants which any continuance could have secured for them."

We find no basis for disturbing the ruling thus made. State v. Leary, 111 La. 301, 35 So. 559; State v. Wilson, 33 La.Ann. 261.

Bill No. 4.

Defendant Gideon Rester filed a motion for a severance. The allegations were that defendant had been informed and believed that his codefendant, John Murphy, would make a "judicial confession" of said murders, that the trial of Murphy would be "merely formal," and that "it would be an injustice to mover to be tried jointly with the said John Murphy. Mover is informed that it is the purpose of the state to use confessions or purported confessions of the said John Murphy and the same are not admissible against this defendant, and to be tried jointly with the said John Murphy would work an injury to this defendant in making his defense."

Neither has anything been said about this bill, and it must therefore have been abandoned. But we see nothing in it to have justified a severance; no sufficient grounds are alleged as to how the defenses would conflict, [97 So. 400] and the mover could be and was amply protected against any ill effects of the confession by his codefendant by instructions from the court. The bill is without merit.

[154 La. 197] Bills 5 to 17.

Bills 5 to 17, inclusive, were to rulings upon challenges to jurors; but, since the peremptory challenges were not exhausted, and the bills have not been mentioned by counsel, the rulings on which they rest must be affirmed.

Bill No. 18.

Bill No. 18 was reserved to the overruling of the motion for a change of venue, after the jury had been empaneled. In his per curiam the judge states that some seventy-five prospective jurors were examined and all stated under oath that they could and would give defendant a fair and impartial trial, except three or four, who said they had formed fixed opinions, and one or two who were opposed to capital punishment. The only evidence in the record is that attached to the bills in which challenges for cause were overruled as to eight of the jurors. In view of the fact that we find nothing in their testimony to show that a fair trial court not have been had, and, considering the further fact that a satisfactory jury was obtained without the use of all challenges, we find no error in the ruling. This bill also has not been mentioned by counsel.

Bill No. 19.

Bill No. 19 states that after calling several witnesses preliminarily, the state "undertook to introduce in evidence a purported confession of the defendants by the witness Frank Carter," which was objected to upon the ground that it was not a confession as to the defendant Gideon Rester. We again quote the per curiam of the judge:

"As shown by the notes of the stenographer, the jury was retired when this motion was filed; the objection being that the confession or statement was not a confession as to Gideon Rester but only applying to his codefendant, John Murphy. The court now refers to the rulings as shown by the stenographer's notes in this bill as to the fact that Frank Carter, the [154 La. 198] witness, stated under oath that the defendants Rester and Murphy came to his house the night after the homicide and together in the presence of each other stated to him all the facts relating to the killing and as related by him on the stand, and the court will say that the same facts were related by both defendants when witnesses on the stand in their own behalf. The court will further state that at the time this testimony was admitted to the jury the court charged the jury that if it found any statement testified to by the witnesses as having been made by either of the defendants out of the presence of the other, such statement could only be considered as testimony against the defendant making such statement."

Neither the evidence taken out of the presence of the jury nor that offered before them is in the record. We must therefore accept the judge's statement, and hence find no cause to reverse his ruling.

Bill No. 20.

Bill No. 20 covers an identical condition with respect to a statement or confession alleged to have been made by defendants to the witness Jap Little. The ruling was correct.

Bill No. 21.

The state placed the district attorney upon the stand for the purpose of proving a confession alleged to...

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17 practice notes
  • State v. Nix, No. 56371
    • United States
    • Louisiana Supreme Court
    • December 8, 1975
    ...outside influence?' The question was rejected by the trial court as being contrary to the principle of law enunciated in State v. Murphy, 154 La. 190, 97 So. 397 (1923), which '(The) charge was correctly refused as calculated to impress any juror with the idea that he should not listen to t......
  • Keeton v. State, 31931
    • United States
    • United States State Supreme Court of Mississippi
    • April 6, 1936
    ...Cas. 1916, 636; Cloniger v. State 91 Tex. Crim. Rep. 143, 237 S.W. 288; People v. Miller, 257 N.Y. 54, 177 N.E. 306; State v. Murphey, 154 La. 190, 97 So. 397; People v. Radeloff, 252 N.Y.S. 290, 140 Misc. --; Bishop v. State, 96 Miss. 846, 52 So. 21; Coon v. State, 13 S. & M. 246; McCann v......
  • State v. Haddad, No. 40508
    • United States
    • Supreme Court of Louisiana
    • December 10, 1951
    ...unauthorized under our law. See State v. Dudenhefer, 122 La. 288, 47 So. 614; State v. Pascal, 147 La. 634, 85 So. 621; State v. Murphy, 154 La. 190, 97 So. 397; State v. Bobo, 169 La. 289, 125 So. 126; State v. Broussard, 217 La. 90, 46 So.2d Defendant also reurged the same objection and s......
  • State v. Fallon, No. 53371
    • United States
    • Supreme Court of Louisiana
    • January 14, 1974
    ...prerogative of the jury as the sole judges of the facts on the issue of guilt or innocence. La.Const. art. XIX, 9; State v. Murphy, 154 La. 190, 97 So. 397 However, the prohibition against comment upon the facts by the judge is subject to a clearly defined exception often recognized and app......
  • Request a trial to view additional results
17 cases
  • State v. Nix, No. 56371
    • United States
    • Louisiana Supreme Court
    • December 8, 1975
    ...outside influence?' The question was rejected by the trial court as being contrary to the principle of law enunciated in State v. Murphy, 154 La. 190, 97 So. 397 (1923), which '(The) charge was correctly refused as calculated to impress any juror with the idea that he should not listen to t......
  • Keeton v. State, 31931
    • United States
    • United States State Supreme Court of Mississippi
    • April 6, 1936
    ...Cas. 1916, 636; Cloniger v. State 91 Tex. Crim. Rep. 143, 237 S.W. 288; People v. Miller, 257 N.Y. 54, 177 N.E. 306; State v. Murphey, 154 La. 190, 97 So. 397; People v. Radeloff, 252 N.Y.S. 290, 140 Misc. --; Bishop v. State, 96 Miss. 846, 52 So. 21; Coon v. State, 13 S. & M. 246; McCann v......
  • State v. Haddad, No. 40508
    • United States
    • Supreme Court of Louisiana
    • December 10, 1951
    ...unauthorized under our law. See State v. Dudenhefer, 122 La. 288, 47 So. 614; State v. Pascal, 147 La. 634, 85 So. 621; State v. Murphy, 154 La. 190, 97 So. 397; State v. Bobo, 169 La. 289, 125 So. 126; State v. Broussard, 217 La. 90, 46 So.2d Defendant also reurged the same objection and s......
  • State v. Fallon, No. 53371
    • United States
    • Supreme Court of Louisiana
    • January 14, 1974
    ...prerogative of the jury as the sole judges of the facts on the issue of guilt or innocence. La.Const. art. XIX, 9; State v. Murphy, 154 La. 190, 97 So. 397 However, the prohibition against comment upon the facts by the judge is subject to a clearly defined exception often recognized and app......
  • Request a trial to view additional results

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