State v. Pearson

• Decision Date: 14 December 1953
• Docket Number: No. 41441,41441
• Citation: 69 So.2d 512,224 La. 393
• Parties: STATE v. PEARSON.
• Court: Louisiana Supreme Court

Page 512

69 So.2d 512

224 La. 393

STATE v. PEARSON.

No. 41441.

Supreme Court of Louisiana.

Dec. 14, 1953.

A. D. Flowers, Jena, and Warren Hunt, Rayville, for appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Cameron C. Minard, Dist. Atty., Columbia, and W. Sardis Bassett, Oak Grove, of counsel, for the State.

PONDER, Justice.

The defendant, Luther Pearson, was charged with murder. He was tried, found guilty of manslaughter and sentenced to serve eighteen years in the penitentiary. He has appealed.

The defendant reserved seven bills of exceptions, during the course of the trial, to the rulings of the trial judge.

Bill of exception No. 1 was taken to the overruling of a motion for a change of venue. It is alleged in the motion that the citizens of La Salle Parish were so inflamed because of certain news articles and photographs allegedly placed on display that it was impossible for the defendant to obtain a fair and impartial trial in that parish. It was also alleged in the motion that it was impossible to secure a fair and impartial trial in the parish because of the relationship of the two deceased persons to the sheriff and one of his deputies.

Ulis Floyd, a State Trooper, and his son, Donald Floyd, were killed on the night of February 3, 1952 in the Parish of La Salle. The defendant and one, Martin Jackson, were jointly indicted in the month of March, 1952 for the murder of Ulis Floyd. A change of venue was granted to Caldwell Parish upon a motion of defendants which was acquiesced in by the State. The defendant and Jackson were jointly tried in the Parish of Caldwell in June of 1952 and the jury failed to reach a verdict thereby resulting in a mistrial. They were thereafter tried in January of 1953 and both were acquitted. In March, 1953 the Grand Jury of La Salle Parish indicted the defendant and Jackson jointly for the murder of Donald Floyd. A motion for change of venue was filed, tried and overruled by the court. This bill of exception was taken to this ruling of the court.

It appears from the per curiam of the trial judge that more than one year had elapsed since the occurrence of the homicide and the time the defendant was tried for the crime in La Salle Parish. The trial judge states that there was no demonstration of hostility towards the defendant during that period of time. The trial judge was of the opinion that the excitement had subsided. The jury was selected with four peremptory challenges unused on each side. A verdict of acquittal was returned with respect to Martin Jackson and the lowest responsive verdict to the indictment was returned with respect to the defendant herein. The testimony taken on the motion does not appear to preponderate either way. Under the circumstances it would be impossible for us to say that the trial judge erred in his ruling.

In the case of State v. Roberson, 159 La. 562, 105 So. 621, we considered a motion for a change of venue, where six months had elapsed since the first trial of the case without any demonstration of hostility towards the accused and where the jury was selected without difficulty, and held therein that the motion was properly overruled. It is well settled that a motion for a change of venue is addressed to the sound discretion of the trial judge and that his ruling thereon will not be disturbed unless abuse of discretion is shown. State v. Carricut, 157 La. 140, 102 So. 98; State v. Leming, 217 La. 257, 46 So.2d 262; State v. Washington, 207 La. 849, 22 So.2d 193; State v. Collier, 161 La. 856, 109 So. 516.

Bill of exception No. 2 was taken to the following portion of the trial judge's charge to the jury, viz.:

'Thus if it be found that at the same place and immediately preceding the killing of Donald Floyd, the defendants had killed or inflicted a serious injury upon Ulis Floyd, the father of Donald Floyd, the facts and circumstances of said killing or injury are inseparably connected with the conflict resulting in the killing of Donald Floyd, and are to be considered by the jury along with all other relevant testimony in determining who was the aggressor in the conflict between defendants and Donald Floyd.

'Hence, if it be shown that defendants had killed Ulis Floyd or inflicted great bodily harm upon him, but that same was done justifiably in self-defense, that fact would give rise to an inference that the defendants were justified in resisting the attack of Donald Floyd provoked by the killing of Ulis Floyd, if in fact such attack placed them in great danger of being killed or of receiving great bodily harm. On the other hand, if it be found that the killing or injuring of Ulis Floyd was without justification, the Jury should consider that fact in connection with all other relevant evidence in determining whether or not defendants brought on the fatal difficulty with Donald Floyd.'

It appears that the defendant reserved this bill of exception on the ground that this portion of the charge was not a correct statement of the law applicable to the case. It was not pointed out at that time in what respect it was incorrect.

Under LSA-R.S. 15:391 any objection to a charge shall be by means of a bill of exception accompanied by a statement of facts showing the error in the charge given. In other words, the purpose of the law is to call the trial judge's attention to the error complained of and afford him an opportunity to correct it. A mere statement that it is incorrect is not sufficient. LSA-R.S. 15:391; State v. Linam, 175 La. 865, 144 So. 600; State v. Ricks, 170 La. 507, 128 So. 293; State v. Covington 169 La. 939, 126 So. 431; State v. Guillot, 200 La. 935, 9 So.2d 235; State v. Stracner, 190 La. 457, 182 So. 571.

Bills of exception Nos. 3 and 4 relate to the same issue of law and are herewith considered together. These bills were taken when the State introduced evidence to show the condition of Donald Floyd, the deceased, with reference to his vision and the manner in which he walked. Both...