State v. Oteri

• Decision Date: 08 May 1911
• Docket Number: 18,605
• Citation: 55 So. 582,128 La. 939
• Court: Louisiana Supreme Court
• Parties: STATE v. OTERI

55 So. 582

128 La. 939

STATE v. OTERI

No. 18,605

Supreme Court of Louisiana

May 8, 1911

Rehearing Denied June 17, 1911.

Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin K. Schwing, Judge.

Frank Oteri was convicted of murder and appeals. Affirmed.

Henriques & Otero, C. S. Hebert, and Schwing & Levy, for appellant.

Walter Guion, Atty. Gen., and J. H. Morrison, Dist. Atty. (G. A Gondran, of counsel), for the State.

OPINION

LAND J.

The accused was indicted for the murder of J. F. Stephens and was tried, found guilty as charged, and sentenced to be hanged.

The accused has appealed, and relies for reversal on a number of bills of exception.

The case against the accused was based entirely on circumstantial evidence. The accused and the deceased came from New Orleans to Plaquemines in a gasoline boat, owned by the deceased. After sojourning there for some two weeks, they left in the boat for Morgan City, some 80 miles down the Bayou Plaquemines. They left on the morning of September 14th, and on the following afternoon the accused returned alone to Plaquemines, where he was arrested by a deputy sheriff, who had received information by telephone that the body of Stephens had been found in Grand river, about 40 feet from the gasoline boat, which had been abandoned. Dr. Holloway, the coroner of the parish, viewed the body of Stephens, and found that his death had been caused by a fracture of the skull just over the ear, out of which his brains protruded. Dr. Holloway found in the boat a heavy piece of iron which fitted "very nicely" in the wound. On the trial Dr. Holloway so testified over the objections of the accused, who reserved a bill to the admission of the evidence. This bill is not discussed in the brief of the counsel, and is without merit. The testimony merely tended to show that the fatal wound was inflicted by the use of an iron bar found in the boat.

Bill No. 2 was reserved to the testimony of Dr. Holloway as to a certain conversation between the accused and Deputy Sheriff Erwin in the parish jail, relative to some articles of jewelry found on the person of the accused, on the ground that proper foundation had not been laid for proof of a confession or admission of guilt.

The judge states:

"He made no confession of guilt, nor any such admission. The statement made at the time of his arrest was in explanation of his possession of some little articles of jewelry of small value."

An objection to a confession or admission of guilt on the ground that the state had not laid the proper predicate for the introduction of such evidence has no relevancy to exculpatory statements made by the accused. Dr. Holloway and the deputy sheriff testified that the statements made were absolutely free and voluntary, without threats or inducements of any kind. Dr. Holloway does state that a certain man said, "We ought to take him out and hang him," but swears that no threats were made at the time of the conversation between the accused and the deputy sheriff. It does not appear from the bill when the threat was made by the outsider. It has been often held that exculpatory statements of an accused are not subject to the same rules which govern confessions or admissions of guilt. State v. Howard, 127 La. 435, 53 So. 677; State v. Aspara, 113 La. 940, 37 So. 883; State v. Picton, 51 La.Ann. 625, 25 So. 375. It does not appear from the bill that there was any confession or admission of guilt by the accused. Bill No. 3 embraces the same ground of objection.

Bill No. 4 was reserved to the admissibility of the testimony of Jules A. Carville in behalf of the prosecution as to certain statements and acts of the deceased out of the presence of the accused. The said testimony may be summarized as follows: On Sunday, September 4th, a man walked up to Carville and introduced himself as J. S. Stephens, and asked if Carville was a notary, and could get pension papers for him. Carville replied he would if Stephens would come over to his office the next morning. On Monday Stephens called at Carville's office with the pension voucher, and Carville requested him to produce his pension certificate as provided by law. Stephens went to the boat in which the accused was sitting at the time, and in a short time returned with the pension certificate. Carville, after comparing the certificate with the voucher, filled the blank as notary, and mailed the voucher to the pension office at Detroit, Mich. The voucher was returned on the morning of September 13th, and Stephens came to Carville's office with the voucher and wanted to have it cashed. Carville told Stephens to step across to the bank. That is all that Carville knew of the transaction.

The judge a quo says in his per curiam:

"The purpose of the evidence was to show that the deceased had money in his possession on the day before he left Plaquemine on a small gasoline boat, through the swamp, going towards Morgan City, accompanied solely by the accused. The objection aimed more at the weight and effect of the evidence than its admissibility. It could have had no effect had the state not shown circumstantially that the accused was in a position to know and did know of the affairs of the deceased, and that he was possessed of property of value."

The objection to the testimony was that it was not shown that the accused heard the conversations between Stephens and Carville, or knew that the deceased had drawn money from the bank. Carville testified that the accused was standing near by, when the first conversation took place, and was in the boat when Stephens went on board to get the certificate. The accused from his association with Stephens had the opportunity of knowing that he possessed money or valuable papers. The theory of the prosecution was that Stephens had been murdered and robbed by the accused, his fellow voyager.

It was certainly competent for the prosecution to prove that Stephens had in his possession a pension voucher on which money could have been obtained. The conversations between Carville and Stephens were explanatory of the transaction between them relative to the voucher. We see no error in the ruling of the court to the prejudice of the accused.

Bill No. 5 was reserved to the admission of a photograph. The judge states that it was shown that the photograph was that of the deceased.

Bill No. 6 was reserved to the admission of a tin box and contents found on the boat of the deceased the day after the homicide. The objections were that it had not been shown that there was any connection between said box and the accused, or that he knew of its contents, or that the contents were of some value. The judge states that it was shown that the box referred to was found on the gasoline boat, where the prosecution claimed the homicide was committed, a few hours after that boat had been abandoned by the accused and shortly after the homicide, and was in the same condition when offered in evidence as it was when found by the witness. The bill does not state what was the condition of the box when it, with its contents, was offered in evidence.

In the next bill, which is not referred to in the brief of the learned counsel for the accused, it is stated by the trial judge that a certain building and loan association statement, the property of the deceased, was found in a suit case belonging to the accused, and traced to his immediate possession.

In State v. McFarlain, 42 La.Ann. 805, 8 So. 601, where objection had been made to certain testimony as irrelevant to the issue, the court said:

"It is a fact to be taken into consideration that the state relied exclusively on circumstantial evidence, and was necessitated for that reason to make out proof of defendant's guilt by piecemeal, and to obtain it from any possible source at her command. At the particular stage of the proceedings at which these objections were interposed, it was in all likelihood impossible for the judge to determine the pertinency of the evidence offered; and under the well-recognized rule of law that no party can be controlled in the order in which he shall introduce his testimony the only proper course for the judge was to admit the testimony under the reservation he made. And, had the grounds of defendant's objection been well taken, he should have insisted on the preferred instructions being given to the jury, and, the same having been refused, he should have reserved a bill of exceptions. We cannot perceive what other course was open to the judge; and, if the state failed to connect the proffered testimony with the crime charged, it would have been given no weight with the jury, and the defendant's counsel could have required the judge to so instruct the jury."

It is common practice in other jurisdictions to move the court to strike out irrelevant evidence when shown to be such. While no such reservation was made in the case at bar, the judge admitted the evidence because he deemed it relevant, and the onus is on the accused to show that the evidence objected to by him was not only irrelevant, but prejudicial. It is not shown that the state subsequently failed to connect the accused with the box and contents offered in evidence. The state was not required to prove this connection before offering the box in evidence. It may be readily imagined that the condition of the box and contents found on the boat a few hours after its abandonment by the accused had some relevancy to the question of his connection with the homicide. As already stated, the per curiam attached to bill No. 7 shows that evidence was adduced to prove that certain papers belonging to the deceased were found in the actual possession of the accused. We see no reversible error in bills Nos. 6 and 7.

Bill ...