State v. Pesson

• Citation: 256 La. 201,235 So.2d 568
• Decision Date: 04 May 1970
• Docket Number: No. 50158,50158
• Parties: STATE of Louisiana v. Gertrude PESSON.
• Court: Louisiana Supreme Court

Page 568

235 So.2d 568 256 La. 201 STATE of Louisiana
v.
Gertrude PESSON. No. 50158. Supreme Court of Louisiana. May 4, 1970.
Rehearing Denied June 8, 1970.

[256 La. 205]

Page 569

Alvis J. Roche, Lake Charles, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Charles W. Richard, Asst. Dist. Atty., for appellee.

Page 570

S. SANFORD LEVY, Justice Ad Hoc.

Gertrude Pesson was charged with having committed the crime of abortion in violation of the provisions of LRS 14:87(2). [256 La. 206] She was tried by a jury, found guilty and sentenced to serve four years at hard labor in the Louisiana State Penitentiary. She is appealing from the conviction and sentence and relies on eleven bills of exceptions to obtain a reversal thereof.

Bill of exceptions No. 1 was reserved to the court's refusing to order a preliminary hearing. The record reveals that following her arrest the accused, on October 2, 1968, caused to be filed on the district attorney a rule to show cause why a preliminary hearing should not be ordered. The hearing on the rule was set for October 9, 1968. On that day defendant had been released on bail and, prior to the hearing, the bill of information was filed. Thereafter, the court declined to order a preliminary hearing. The defendant objected and reserved bill of exceptions No. 1. On October 30, 1968, a rehearing was denied, and the case was fixed for trial on June 9, 1969.

In connection with the bill the defendant argues that under the provisions of Article 292 of the Code of Criminal Procedure she was entitled to a preliminary hearing as a matter of right, inasmuch as she had moved for the hearing and the court had ordered it prior to the filing of the bill of information.

The argument is groundless. The accused is in error when she asserts that she had moved for and been granted a preliminary hearing. She merely filed a rule [256 La. 207] to show cause why a hearing should not be ordered and the court had fixed a date to try the rule. Prior to a decision on the rule, and before the court ordered a preliminary hearing, the bill of information was filed.

But even if it be conceded that the defendant's rule could be considered as a motion for a preliminary hearing, and that the judge's ruling thereon constituted an order for a preliminary hearing, we find no error in his refusal to proceed further with the hearing after the bill of information was filed.

The question of the effect of the filing of a bill of information after a preliminary hearing has been ordered in response to a motion by the accused, has not yet been considered by us in a case appealed to this court. However, the precise issue has been recently presented twice in applications for writs under our supervisory power. In each of those cases we denied the writs sought, thereby approving and maintaining the rulings of the trial courts that even though a preliminary hearing was ordered before a bill of information or an indictment was filed, the holding of that hearing became discretionary with the court once the bill of information was filed, in the same manner as if an indictment had been filed by the grand jury. See State v. King and Williams, 255 La. 501, 231 So.2d 402, and State v. Fitzsimmons, 255 La. 787, 232 So.2d 515. We adhere to that ruling.

[256 La. 208] Moreover, it appears to us that the correctness of the ruling in this regard became moot, at least when the verdict of guilty was rendered. In State v. Hudson, 253 La. 992, 221 So.2d 484 we said:

'The right to a preliminary examination in this State is designed primarily to determine whether probable cause exists to charge the accused. It is also an important safeguard against high-handed police procedures and third degree methods. It provides an opportunity to bring defense counsel into the picture--implementing the constitutional privilege against self-incrimination and the right to bail. * * *'

If defendant had been denied any of the rights sought to be safeguarded by the authorizing a preliminary hearing, she had an immediate remedy by resort to this court under our supervisory jurisdiction. But without a showing that the denial of those rights resulted in some specific prejudice Which resulted in an unfair trial, then

Page 571

we think that the issue of the correctness of the judgment refusing to grant a preliminary hearing became moot after a verdict of conviction was rendered.

Bill of exceptions No. 2 was reserved to the court's overruling of defendant's motion, filed before trial, for production of oral statements made by the accused.

[256 La. 209] The bill is without substance. It is well settled in our jurisprudence that the ruling which permits a pretrial inspection by an accused of his written statements does not apply to oral confessions. See State v. Lea, 228 La. 724, 84 So.2d 169, cert. den., 350 U.S. 1007, 76 S.Ct. 655, 100 L.Ed. 869, State v. Bickham, 239 La. 1094, 121 So.2d 207, cert. den., 364 U.S. 874, 81 S.Ct. 123, 5 L.Ed.2d 98, and State v. Manuel, 253 La. 195, 217 So.2d 369.

When the court overruled the defendant's motion to suppress certain evidence the accused reserved bill of exceptions No. 2. The evidence referred to was that seized at the time of the accused's arrest. (Also included in the motion were the oral statements hereafter dealt with in bill of exceptions No. 6. However, a ruling on the objection to them was referred to the time when they would be introduced into evidence during the trial.)

The objection to the evidence was that it was not seized incidental to a valid arrest and/or search, and that the defendant was refused the benefit of counsel after the unlawful arrest.

The per curiam to this bill of exceptions recites that:

'* * * The evidence reflected that the officers of the Sheriff's Department were informed by a physician of the Charity Hospital that a patient showed symptoms of an abortion having been [256 La. 210] performed upon her. The patient was interviewed by the officers and were furnished the address and description of the person who allegedly performed the abortion. A search warrant was obtained to search the address and upon arrival at the house found defendant there who fitted the description furnished by the alleged victim. They searched the premises under the authority of the warrant and found certain paraphernalia which could be used in an abortion. The defendant was placed under arrest, taken to...