State v. Palmer

• Decision Date: 21 March 1955
• Docket Number: No. 42042,42042
• Citation: 227 La. 691,80 So.2d 374
• Parties: STATE of Louisiana v. Walter PALMER.
• Court: Louisiana Supreme Court

Page 374

80 So.2d 374

227 La. 691

STATE of Louisiana v. Walter PALMER.

No. 42042.

Supreme Court of Louisiana.

March 21, 1955.

Rehearing Denied April 25, 1955.

Joseph M. Blache, Jr., Louis J. Ourso, Jr., Hammond, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Duncan S. Kemp, Dist. Atty., Amite, W. M. Dawkins, Denham Springs, Leonard E. Yokum, Asst. Dist. Attys., Hammond, for appellee.

SIMON, Justice.

The defendant, Walter Palmer, has appealed to this Court from his conviction and sentence to death for the murder of Merwin Kendricks, and relies upon twelve bills of exception for the annullment of the verdict and sentence.

Bills of Exception Nos. 1, 2 and 3 were reserved to the ruling of the Court on the voir dire examination of three prospective jurors, in which alleged prejudicial questions and statements were made by the district attorney to them, in the presence of the jury panel or venire present in the courtroom, and the refusal of the trial judge to order a mistrial.

Over objection of counsel for the defendant, the district attorney was permitted to state to the three prospective jurors that the defendant was indicted by the grand jury for the murder of Merwin Kendricks while engaged in the perpetration of aggravated rape on Lillie May Hemphill Ford, all constituting one series of acts. The State guardedly informed these jurors, however, that the defendant was only being tried for the crime of murder. Counsel for the defense argue that the court erred in permitting the district attorney to inform these prospective jurors that it expected to prove the commission of the crime of murder and that of aggravated rape; that the crimes of murder and aggravated rape are separate and distinct offenses, and that reference to a crime, other than that charged, was highly prejudicial and improper and could serve no other purpose than being inflammatory and creating the impression that the defendant was guilty of a sex crime, in violation of his constitutional rights guaranteeing a fair and impartial trial.

LSA-Revised Statutes 14:30 defines murder as the killing of a human being '(1) When the offender has a specific intent to kill or to inflict great bodily harm; or (2) When the offender is engaged in the perpetration or attempted perpetration of * * * aggravated rape, * * * even though he had no intent to kill.'

The pertinent portion of the per curiam of the trial judge on these bills is as follows:

'Bills of Exception Nos. 1, 2 and 3 were reserved to the court overruling an objection made to the questions of the district attorney to a prospective juror in explaining the crime of murder. A reference to these bills shows that the district attorney either read or quoted to them LSA-R.S. 14:30 defining the crime of murder * * * (as above quoted).

'The court instructed the jury and prospective jurors that the defendant was being tried for the crime of murder. The objection was that there was reference to a crime other than that of murder, namely: the crime of aggravated rape.

'An indictment of murder was returned against the defendant who was being tried for the crime of murder only, and the jury was so instructed and the reference to aggravated rape was made by the district attorney only for the purpose of explaining the crime of murder under the aforesaid section.

'This court was of the opinion that this was one series of events which were so closely associated and happened so close together that it would be impossible to segregate one from the other and that the murder was actually committed while in the perpetration of the crime of aggravated rape. The continuous series of evens (events) constituted the Res Gestae. * * *

'The court, in its charge, so instructed the jury that murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated rape, armed robbery or simple robbery, even though he had no intent to kill, etc.'

In the recent case of State v. Sears, 217 La. 47, 46 So.2d 34, 35, we had occasion to review the admissibility of evidence involving the commission of a separate crime other than that charged, and we referred exhaustively to the text-writers and our jurisprudence on the subject. In that case we approvingly quoted from 1 Wharton's Criminal Evidence (11th ed.) the applicable rule, as follows:

"If evidence of the commission of another crime constitutes a part of the res gestae, it is admissible.' Sec. 345, at p. 490.

"The well-settled rule that evidence of collateral crimes cannot be introduced on the trial of a homicide charge is subject to an exception where the collateral crime precedes, or is contemporaneous with, or a part of, the charge on trial and the circumstances surrounding the collateral crime are essential to prove or to explain the crime charged. * * *' Sec. 346, p. 491.

"When a collateral offense, or as it is sometimes called, an extraneous crime, forms part of the res gestae, evidence of it is admissible. As an isolated or disconnected fact, or where it is offered for the mere purpose of creating prejudice against or inviting sympathy for the accused, it is not relevant. When offered as an exception to the general rule of exclusion, it becomes a matter of substance with the charge on trial. * * * When two or more offenses are part of the same transaction, every element of the defendant's conduct in that transaction may be shown for the purpose of illustrating the mative or intent in committing the act which is the basis of the charge. It is essentially res gestae. In one case, the court admitted testimony of a so-called second offense because it was so closely connected with the offense charged in time and circumstance as to constitute one and the same offense. If a second person is murdered as a part of the same transaction, evidence of the condition of the body of the second person killed is admissible in a prosecution for the murder of the first person.' Sec. 347, pp. 496, et seq.' (Italics ours.)

In the Sears case we again approvingly quoted from 2 Warren on Homicide (Perm. Ed.) as follows:

"The general rule is that proof of distinct and independent offenses is not admissible on the trial of a person accused of a crime. This rule is founded in reason, for to allow the introduction of evidence of other and distinct offenses would confuse and mislead the jury as to the real issue to be determined, would prejudice the prisoner by irrelevant matter, and require him to meet charges foreign to the specific offense laid to his charge.

"* * *

"There are exceptions to and modifications of this general rule, as where such evidence reasonably tends to show malice, intent, or motive on the part of a defendant with respect to the crime, or where the offense is so closely connected with the crime as to bring it within the rule of res gestae. * * *

"* * * Evidence of other offenses consisting of an entire series of events, constituting but one transaction, is competent. On a trial for killing a certain person everything done at the time and every part of the affair, including defendant's killing another person and shooting a third person, is admissible as explaining the nature and motive of the act for which the defendant is being tried. Where a killing is only one incident of an entire transaction, evidence of the whole transaction as an entirety, including what happened before and after the killing, is admissible.' Sec. 213, pp. 586, et seq.

"* * * To make one criminal act evidence of another a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish, or it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other. If the evidence be so dubious that the court does not clearly perceive the connection, the benefit of the doubt should be given the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact carrying with it no proper evidence of the particular guilt. * * *' Sec. 215, p. 623.' (Italics ours.)

As stated by Marr in his work on criminal jurisprudence of this state: ¹

'* * * When the scienter or quo animo forms an essential or indispensable part of the inquiry, testimony may be offered of such acts, conduct or declarations of accused as tend to establish such knowledge or intent, notwithstanding they may, in law, constitute a distinct offense. That is to say, to the general rule that no evidence can be given of felonies committed by accused other than that charged in the indictment there are exceptions. Thus, proof of a different crime from the one charged is admissible when both offenses are closely linked and constitute a part of the res gestae, or when it is pertinent and necessary to show motive or intent * * *.' (Italics ours.)

The authorities in support of these principles are legion in our jurisprudence, and it is now well settled that evidence or proof of the commission of a different or other crime than that charged is admissible when both offenses are closely linked and constitute a part of the res gestae. State v. Mulholland, 16 La.Ann. 376; State v. Deschamps, 42 La.Ann. 567, 7 So. 703, 21 Am.St.Rep. 392; State v. Donelon, 45 La.Ann. 744, 12 So. 922; State v. Anderson, 120 La. 331, 45 So. 267; State v. Blount, 124 La. 202, 50 So. 12; State v. Ard, 160 La. 906, 107 So. 617; State v. Cole, 161 La. 827, 109 So. 505; State v. Schmidt, 163 La. 512, 112 So. 400; State v. Norphlis, 165 La. 893, 116 So. 374; State v. Leslie, 167 La. 967, 120 So. 614; State v. Comeaux, 171 La. 327, 131 So. 36; State v. Jones, 174 La. 1074, 142 So. 693; State v. Bryan, 175 La. 422, 143 So. 362; State v. Mitchell, 181 La. 135, 158 So. 820; State v. Cupit, 189 La. 509, 179 So. 837; State v. Rives, 193 La. 186, 190...