State v. Poland

• Decision Date: 23 February 1970
• Docket Number: No. 49971,49971
• Citation: 232 So.2d 499,255 La. 746
• Parties: STATE of Louisiana v. John POLAND.
• Court: Louisiana Supreme Court

Page 499

232 So.2d 499

255 La. 746

STATE of Louisiana v. John POLAND.

No. 49971.

Supreme Court of Louisiana.

Feb. 23, 1970.

Scallan E. Walsh, Donald T. W. Phelps, Bert K. Robinson, Baton Rouge, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for appellee.

FOURNET, Chief Justice.

The defendant, John Poland, is appealing from his conviction and sentence to death on an indictment charging him with murder, relying for the reversal thereof on 23 of the many Bills of Exceptions reserved during the course of the trial.

The first of these, Bill of Exceptions No. 3, was reserved when the trial judge overruled the defense plea of double jeopardy. The basis for this bill lies in the fact that the defendant, who had, on May 6, 1966, pleaded guilty to and been sentenced under the charge of attempting to murder one Joseph Sanchez, was indicted on June 15, 1966, following the subsequent death of Sanchez, for his murder. Counsel for the defendant contend that the 'attempted murder merged into and became murder when the victim succumbed,' and there was, therefore, but one offense; consequently, to charge defendant with the second charge after he had been convicted under the first constituted double jeopardy. In support thereof, counsel rely on State v. Yokum, 155 La. 846, 99 So. 621; State v. Roberts, 152 La. 283, 93 So. 95, 24 A.L.R. 1122; State v. Foster, 156 La. 891, 101 So. 255; State v. Schneller, 199 La. 811, 7 So.2d 66; State v. Sawyer, 220 La. 932, 57 So.2d 899; Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, and Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370.

In adopting the Louisiana Code of Criminal Procedure by Act 310 of 1966, the legislature, in conformity with our constitutional guarantee contained in the Bill of Rights, to the effect that no person shall 'be twice put in jeopardy of life or liberty for the Same offense' (Section 9 of Article I), provided that 'No person shall be twice put in jeopardy of life or liberty for the Same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with express consent of the defendant.' Article 591. It further provided that 'Double jeopardy exists in a second trial only when the charge in that trial is: (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or (2) Based on a part of a continuous offense for which offense the defendant was put in jeopardy in the first trial.' Article 596. (The emphasis has been supplied.)

The identical issue here urged was decided adversely to the defendant's contention in State v. Wheeler, 173 La. 753, 138 So. 656. In that case, and in reliance on the authorities cited, it was held that a prosecution for the crime of murder was not barred because defendant had been previously convicted of shooting with intent to murder. In so ruling, this court stated the offense previously charged and the offense with which the defendant was subsequently charged were not identical, nor different grades of the same offense, nor was one necessarily included in the other; consequently, that neither an acquittal nor a conviction of shooting with intent to murder was a bar to a prosecution for murder upon the death of the injured person.

This is in accord with the law generally prevailing on the subject. As pointed out in American Jurisprudence, Second, 'According to a general precept of criminal law, if, after the first prosecution, a new fact supervenes for which the defendant is responsible, and which changes the character of the offense and, together with the facts existing at the time, constitutes a new and distinct crime, an acquittal or conviction of the first offense is not a bar to an indictment for the other distinct crime. Thus, Neither an acquittal nor a conviction for assault while the person assaulted is still living will bar a prosecution for murder or manslaughter instituted after the person assaulted dies on account of the injuries received; and the trial for murder does not place the defendant twice in jeopardy.' Volume 40, Homicide, page 470, Section 186. See, also, 1 Bishop's New Criminal Law, Section 1059, page 634; 2 Wharton's Criminal Evidence, 12th edition Section 653; 22 C.J.S. Criminal Law § 287c, p. 753; 21 Am.Jur.2d 242, Criminal Law, Section 186; annotations at 37 A.L.R.2d 1068 and 11 A.L.R.3d 834; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; People v. Harrison, 395 Ill. 463, 70 N.E.2d 596, certiorari denied 334 U.S. 812, 68 S.Ct. 1013, 92 L.Ed. 1744; State v. Littlefield, 70 Me. 452, 35 Am.Rep. 335; State v. Wilson, 85 Ariz. 213, 335 P.2d 613; and Commonwealth v. Ramunno, 219 Pa. 204, 68 A. 184, 14 L.R.A.,N.S., 209. (Emphasis supplied.)

In People v. Harrison, the leading case in this country in the field, the court pointed out that the crime of murder was not an offense of which defendant might have been convicted on an indictment charging an assault with intent to commit murder; consequently, that at the first trial he was not 'in peril of being convicted' of the charge of murder. The reason for this, as pointed out by the United States Supreme Court in the Diaz case, is that 'The homicide charge * * * in the court of first instance and the assault and battery for which he was tried * * * although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.' Furthermore, the evidence in support of the indictment for murder could not have secured a conviction of that crime on the first indictment, charging only assault on a person then living. Commonwealth v. Ramunno, 219 Pa. 204, 68 A. 184, 14 L.R.A.,N.S., 209.

The authorities relied on by defense counsel are inapposite from a factual and legal standpoint. In fact, State v. Yokum and State v. Foster are to the contrary, ¹ while the United States Supreme Court in the Prince case was careful to point out that its holding turned on the particular federal statute involved and was to be differentiated from similar problems in this general field raised under other statutes. The remaining cases constitute continuing offenses, specifically provided for in the second part of Article 596 of the code, and are to the effect that conviction or acquittal as to such an offense on a particular day or in a particular parish would serve to bar a second prosecution for this same offense on a different day or in another parish. ²

The next bill relied on, No. 6, was reserved when the trial judge overruled defendant's motion for a change of venue, the contention being that the wounding and subsequent death of Sergeant Sanchez in the line of duty 'provoked publicity from radio, television, and newspapers' in East Baton Rouge Parish, and this, together with the nature of the case and the publicity given a fund raised for Sanchez, created a real danger that he could not get a fair trial in Baton Rouge.

The granting of a change of venue is to be exercised with caution and always rests within the sound discretion of the trial judge, whose ruling denying the motion for same will not be disturbed unless the evidence affirmatively shows his ruling was unfair and a clear abuse of judicial discretion. State v. Roberson, 159 La. 562, 105 So. 621; State v. Collier, 161 La. 856, 109 So. 516; State v. Washington, 207 La. 849, 22 So.2d 193; State v. Pearson, 224 La. 393, 69 So.2d 512; and State v. Lejeune, 248 La. 682, 181 So.2d 392. In addition, the burden of establishing by legal evidence that the applicant for a change of venue could not secure a fair trial in the parish where he was charged with committing a crime, rests upon the applicant. Article 622 of the new Code of Criminal Procedure; State v. Faciane, 233 La. 1028, 99 So.2d 333; and State v. Lejeune, supra, and the authorities therein cited.

As pointed out in the Lejeune case, 'The test to be applied is whether there can be secured with reasonable certainty from the citizenry of the parish a jury whose members will be able to try the case uninfluenced by what they might have heard in the matter, and who will give the accused the benefit of any reasonable doubt which might arise from the evidence or from the lack thereof.' ³ See, State v. Wilson, 240 La. 1087, 127 So.2d 158; State v. Scott, 237 La. 71, 110 So.2d 530; State v. Rogers, 241 La. 841, 132 So.2d 819, and the authorities therein cited.

A careful review of the note of evidence, together with the exhibits made a part of this bill, convinces us the trial judge did not abuse the discretion vested in him. In his reasons for overruling the motion he stated that although the public was alerted to what happened in this case at the time, as they are in all crimes involving homicide, of the many witnesses produced by defendant to substantiate this claim, only one said he did not feel he could bring in a fair verdict by reason of the publicity. Furthermore, the judge reminded that the publicity attendant upon the incident at the time it occurred had greatly subsided because of the length of time between that time and the date of defendant's trial on the subsequent charge.

In this the judge is supported by the record, which reveals the shooting of Sanchez, resulting in his subsequent death, occurred on the night of April 16, 1966, and the trial did not...