State v. Norphlis

• Decision Date: 12 March 1928
• Docket Number: 29051
• Citation: 116 So. 374,165 La. 893
• Court: Louisiana Supreme Court
• Parties: STATE v. NORPHLIS

116 So. 374

165 La. 893

STATE v. NORPHLIS

No. 29051

Supreme Court of Louisiana

March 12, 1928

Appeal from Third Judicial District Court, Parish of Lincoln; S.D Pearce, Judge.

Bell Norphlis was convicted of larceny of a dress, and she appeals.

Verdict and sentence annulled, and case remanded for a new trial.

J. W Elder, of Farmerville, for appellant.

Percy Saint, Atty. Gen., Wm. J. Hammon, Dist. Atty., of Jonesboro and E. R. Schowalter, Asst. Atty. Gen., for the State.

O'NIELL C. J. THOMPSON, J., dissents.

OPINION

O'NIELL, C. J.

The appellant was prosecuted under a bill of information charging that she had stolen from Mrs. Jettie Timon a dress worth $ 32 and several pairs of silk hose worth $ 10. She was convicted of larceny of the dress only, and sentenced to imprisonment in the penitentiary at hard labor for a term not less than 11 or more than 18 months. The record contains five bills of exception.

Bill No. 1 was reserved to the overruling of a motion for a new trial. The motion was founded upon the allegation merely that the verdict was contrary to the law and the evidence. The bill of exceptions therefore does not tender a question of law for decision.

Bill No. 2 was reserved to the overruling of a motion in arrest of judgment. The motion was founded upon the contention that the bill of information did not specifically charge that a crime was committed. The allegations of the bill of information were in due form. There was therefore no merit in the motion in arrest of judgment.

Bills No. 3 and No. 5 were reserved to the overruling of objections to the introduction of evidence tending to prove that the defendant had stolen other articles, namely, a dress marked $ 29.50, two pairs of underwear, and some silk stockings. It is stated in the bill of exceptions, and is admitted in the statement by the judge, that when the objection was made by the defendant's attorney, the district attorney explained to the court and the jury that he was confining his proof to the charge that the defendant had stolen the $ 32 dress in the store of Mrs. Timon, the dress having been found in the defendant's possession and taken from her by a saleslady in the store. The testimony attached to the bills of exception shows that, some time after the $ 32 dress was taken from the defendant by the saleslady in Mrs. Timon's store, the saleslady and the town marshal went to the defendant's residence and searched the premises, and there, in a room rented and occupied by a woman named Adella Arrington, the saleslady and the marshal found another dress, marked $ 29.50, and two pairs of underwear, all of which belonged to Mrs. Timon, and some silk stockings which did not belong to her. Adella Arrington claimed the articles. She was prosecuted for larceny of the $ 29.50 dress and was convicted and sentenced to imprisonment. Her case, however, is not before us. The question here is whether, in the prosecution of the defendant, Bell Norphlis, on the charge of having stolen the $ 32 dress in the store of Mrs. Timon, it was permissible for the prosecuting attorney to introduce evidence tending to prove that another crime was committed by the defendant, by showing that the other dress, marked $ 29.50, and the two pairs of underwear, formerly belonging to Mrs. Timon, were found in the defendant's residence.

It must be borne in mind that the general reputation or character of the defendant was not an issue in the case; and, even if her general reputation or character had been put at issue, proof of another and specific crime would not have been admissible to prove the general bad character or reputation of the defendant. It appears that the judge allowed the evidence to be introduced mainly, if not only, for that purpose. The statement per curiam is as follows:

"The evidence was offered, not for the purpose of proving other offenses and convicting the accused of such other offenses, but for the purpose of showing the thievish, shoplifting habit and course of conduct of the accused, and it was so stated by the district attorney at the time of offering the testimony, and was so explained to the jury. The witness was a saleslady for Mrs. Timon, the merchant from whom the goods were stolen, and knew what had been stolen from her employer, and was able to identify the goods so stolen, as stated by her, and hence it could not be said to be opinion evidence. For the purpose [for which] the testimony was offered, and after a full explanation to the jury that it could only be considered for the purpose of showing habit and course of conduct, and not for the purpose of convicting her of anything else than the larceny of one dress and several pairs of silk stockings, as alleged in the bill of information, I considered it to be admissible, and allowed the testimony to go to the jury."

The statement of the district attorney and the judge that the evidence tending to prove that the defendant had committed another theft than the theft charged was not offered for the purpose of convicting the defendant of the other offense -- either of having stolen other property or of being in possession of the other stolen property -- is entirely beside the question, because no one, we dare say, would contend for a moment that the defendant was subject to conviction for any other crime than the crime which she was accused of, and as to which alone she was called upon to defend herself.

The general and universal rule is that evidence tending to prove that the defendant committed another crime than that charged in the indictment or bill of information is not admissible. Marr's Criminal Jurisprudence, 678, No. 406, citing State v. Johnson, 38 La.Ann. 686; State v. Bates, 46 La.Ann. 849, 15 So. 204; State v. Cavanaugh, 52 La.Ann. 1251, 27 So. 704; State v. Williams, 111 La. 179, 35 So. 505; State v. Smith, 156 La. 818, 101 So. 209; Rice on Evidence, vol. 3, c. 25, § 153, and especially regarding larceny, chapter 42, § 453; 16 C. J. p. 574, No. 1115, p. 586, No. 1132, No. 1133, No. 1134; 8 R. C. L. p. 198, No. 194.

"While there are several well-recognized exceptions to the rule excluding evidence of other offenses -- and these exceptions are founded on as much wisdom and justice as the rule itself -- the rule should be strictly enforced, and should not be departed from except under conditions which clearly justify such a departure." 16 C. J. p. 587, par. 1133.

One of the exceptions to the general rule is that proof of the commission of other crimes is admissible to show that the act which constituted the crime charged in the indictment was not done accidentally or by mistake, but with a guilty knowledge or evil motive or intent, when that question is at issue or in doubt. There was, of course, no such issue in this case, as there seldom is in the case of larceny. Another exception to the general rule is that evidence of other crimes is admissible when it shows a system of wrongdoing, as in cases of forgery, embezzlement, making false entries in books, etc. There is, of course, no such thing as proving system in a case like this, on an accusation of an isolated instance of larceny.

This court has had occasion to pass upon the identical question that is now presented, in a case that was strangely similar. State v. Bates, 46 La.Ann. 849, 15 So. 204. The defendant was convicted of the larceny of a number of billiard balls or pool balls, belonging to one M. Schultz, in the pool room of Schultz. The verdict was set aside and a new trial granted because the judge, over the defendant's objection, allowed the state to introduce evidence tending to show that the defendant stole other pool balls "within a few days of the larceny charged, * * * to prove system and intent." The facts of the case, and the issue which was tendered, are set forth in the judge's statement at the foot of the bill of exceptions (46 La.Ann. 849 at 852, 15 So. 204 at 205), viz.:

"Bates was tried alone, his codefendant, Ramps, having escaped. The following facts were established: That the prisoner accompanied by his...