State v. Pailet

• Decision Date: 08 June 1964
• Docket Number: No. 47076,47076
• Citation: 165 So.2d 294,246 La. 483
• Parties: STATE of Louisiana v. Juliette PAILET.
• Court: Louisiana Supreme Court

Page 294

165 So.2d 294

246 La. 483

STATE of Louisiana v. Juliette PAILET.

No. 47076.

Supreme Court of Louisiana.

June 8, 1964.

Hubert, Baldwin & Zibilich, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

McCALEB, Justice.

Appellant was charged, tried and convicted of violating R.S. 14:87 (performing an abortion on a pregnant female), and sentenced to serve seven years at hard labor in the State Penitentiary. During the proceedings, she reserved eight bills of exceptions on which she relies for a reversal of the conviction.

Most of the bills relate to alleged erroneous rulings of the district judge on certain motions which were presented in advance of the trial. For this reason we deem it expedient to set forth imprimis a brief statement of the trial procedure before undertaking discussion of the bills.

After the case was at issue on appellant's plea of not guilty, having previously been continued on more than one occasion, the trial was finally set for September 16, 1963. On that date, defense counsel moved for a continuance on the ground that appellant was confined to Touro Infirmary in New Orleans under treatment of a psychiatrist. The State vigorously opposed a continuance but the judge ruled that the matter would be held over until the next day so that physicians appointed by him, viz.--Dr. Nicholas Chetta, Coroner for the Parish of Orleans, and Dr. Gene Usdin,--could examine appellant in order to determine whether she was too ill to stand trial at that time. Conformably with this order, the doctors made their examination and gave expert opinions to the court on September 17th and appellant's physician also testified that she should not be required to undergo a trial at that time. Acting on the latter's opinion, the judge continued the case to November 12, 1963, being of the view that, since all the experts agreed that appellant was then suffering from a temporary mental condition known as 'hysteria fugue', the ends of justice would be served by a delay to November 12th, notwithstanding the contention of the State that the trial should be set not later than the week beginning September 23rd.

The following day, the District Attorney criticized the ruling of the judge and gave a statement to the press describing it as 'incredible'. In addition, he filed a motion to recuse the judge but this was summarily overruled because no facts were stated to support it. Two days later, on September 20th, the State filed a motion to reset the case for trial during the week of September 23rd. This motion was in the nature of an application for a new trial of appellant's motion for a continuance. On September 23rd, the motion was heard and further evidence was adduced by both the State and appellant. After hearing the evidence and arguments, the judge granted the motion and advanced the date of trial from November 12th to September 26th.

On the day before trial, September 25th, appellant filed a motion to recuse the judge on the ground that he was interested in the cause. The motion, like the State's motion for recusation, was summarily overruled. Whereupon, appellant sought remedial writs from this Court but the application was refused. See State of Louisiana v. Mrs. Juliette Pailet, No. 46,954 of our docket.

Bills Nos. 1 and 2 relate to the action of the judge in granting the State's motion to reset the case for trial during the week of September 23, 1963.¹ Counsel for appellant, albeit acknowledging that the granting or refusing of a continuance is a matter within the sound discretion of the judge, the exercise of which will not be disturbed on appeal save in cases of arbitrary or unreasonable abuse (see Article 320 of the Code of Criminal Procedure, R.S. 15:320), assert that this case falls within the exception. Their position is that the divergent rulings of the judge--viz.: the one on September 17th granting the continuance and the revocation of this order on September 23rd--demonstrates such a vacillation in the exercise of discretion as to amount to an unreasonable abuse since the testimony given by the witnesses at both hearings was substantially the same.

We find no merit in the bills. In the first place, the testimony on the motion to reset is not the same as the evidence given on the original motion for continuance. On trial of the motion to reset, the State produced an additional psychiatrist who confirmed the opinion that Dr. Gene Usdin had given on the subject of 'hysteria fugue' a few days before--that a person suffering from such an emotional upheaval is best able to face the unpleasant reality (standing trial) immediately after recovering therefrom and that, if too much time is allowed to elapse, resistance to the dreaded event may increase again.

After reading the testimony taken at both hearings, it is our impression that the judge made the better ruling on the motion to reset. In any case, it is clear that a reversal of the ruling is not indicated as appellant has made no sort of a showing that she suffered prejudice by being required to stand trial on September 26, 1963. At no time during the hearing of evidence or thereafter, in a motion for a new trial, was any complaint made that appellant was mentally confused or that her prior alleged mental illness (crying spells and depression) prevented her from intelligently conferring with her counsel during the trial or deciding whether it would or would not be to her advantage to take the witness stand in her own behalf. Compare State v. Forsyth, 229 La. 690, 86 So.2d 536.

Closely associated with the bills arising from the judge's action in advancing the trial to September 23rd on the State's motion to reset is Bill of Exceptions No. 7, which was taken to the overruling of appellant's motion to recuse the judge on the ground that he was interested in the cause.

Under Article 303 of the Code of Criminal Procedure (R.S. 15:303) this is the first cause of the five therein enumerated for the recusation of a judge and, under Article 309 (R.S. 15:309), if the judge refuses to recuse himself it becomes his duty to refer the application to another judge for trial.

In the case at bar, the judge overruled appellant's motion to recuse without referring it to another judge. This he had the right to do under the jurisprudence construing Article 309--provided the allegations of the petition for recusation were either mere general statements or conclusions or that the facts stated in the petition were such that, if proved, would not justify a finding that he was interested in the cause. State v. Morgan, 142 La. 755, 77 So. 588; State v. Phillips, 159 La. 903, 106 So. 375; State v. Doucet, 199 La. 276, 5 So.2d 894 and the many authorities therein cited and State v. Laborde, 214 La. 644, 38 So.2d 371.

The motion to recuse the judge was filed on September 25, 1963--the day before the case had been reset for trial by the judge's order of September 23rd. The substance of the allegations of the motion is that, after the district attorney had publicly criticized the judge for granting appellant a continuance from September 16th to November 12, 1963, the judge became fearful of adverse publicity; that he had a private meeting with the district attorney and one or more of the latter's assistants; that the district attorney then filed a motion to reset the case for the week of September 23rd; that, as a result of these happenings, the judge, apparently fearing exposure of some relationship between himself and appellant, adopted a definite hostility towards her to such an extent that he became directly and materially interested in the outcome of the case which prompted him to grant the motion to reset the case for trial; that the judge felt that the good will of the district attorney was essential to his political career and that the maintenance of such good will was dependent upon his catering to the desires of the district attorney in the instant case.

In his per curiam to the bill taken to the overruling of the motion for recusation, the judge states that he considered the motion frivolous and that it was obviously filed for the purpose of obtaining a continuance on the day before the morning of the trial when all witnesses had been summoned and both sides, as well as the jury panel, '* * * were ready to proceed to trial.' He was further of the opinion that the motion contained merely the conclusions of the pleader and no facts were alleged which would lead to the conclusion that it was to the judge's personal advantage to seek to bring about a decision in favor of the State.

We agree. The above cited jurisprudence points out that even allegations tending to show bias or prejudice are not sufficient to sustain a charge that the judge has an interest in the cause since bias is neither the equivalent of interest nor is it a ground for recusation under the statute. State v. Laborde, supra. In State v. Phillips, supra, the Court said: 'For a judge to have an interest in a case within the meaning of the law, * * * some fact must exist that leads to the conclusion that it is to the judge's personal advantage, whether he would be influenced by such advantage or not, to decide the case or to seek to bring about a decision therein, for or against one of the parties to it, without reference to the law and the evidence.'

When we consider the circumstances under which the motion to recuse the judge was taken we regard the motion as purely a last minute effort on the part of appellant to delay her trial. The allegations in the motion to recuse, i.e., that appellant believed that the judge and the district attorney had a private meeting; that the judge feared exposure of some personal relationship between appellant and himself,² and that his action with regard to the motion to reset was dictated by his feeling that the good will of the...