State v. Powell

• Decision Date: 16 February 1903
• Docket Number: 14,612
• Citation: 109 La. 727,33 So. 748
• Court: Louisiana Supreme Court
• Parties: STATE v. POWELL

33 So. 748

109 La. 727

STATE v. POWELL

No. 14,612

Supreme Court of Louisiana

February 16, 1903

Appeal from judicial district court, parish of Morehouse; Luther Egbert Hall, Judge.

J. E Powell was convicted of murder, and appeals. Affirmed.

Levy &amp Todd and C. Newton, for appellant.

Walter Guion, Atty. Gen., and James P. Madison, Dist. Atty. (Lewis Guion, of counsel), for the State.

OPINION

BLANCHARD, J.

Indicted for murder and found guilty without capital punishment, defendant appeals from the verdict, and the sentence of imprisonment at hard labor for life, predicated thereon.

A bill of exceptions brings up for consideration the ruling of the trial judge with respect to a motion presented for a change of venue.

The bill recites that after the case had been fixed for trial and on the day for which it was so assigned for trial, and before it was taken up for trial, the defendant offered his motion for change of venue, which motion the court refused permission to file and refused to consider.

In the per curiam part of the bill the judge justifies his ruling by the statement that the homicide was committed on the 10th of January, 1901, and from that time until October 1902 -- a period of nearly two years -- when he surrendered himself, the accused had successfully evaded arrest by concealing himself in the vicinity of the place where the killing was done; that having been in and about the vicinity of the crime for so long a time he could hardly, at the time he surrendered, have been ignorant of public excitement or prejudice against him, if the same existed; that he was arraigned on Tuesday, October 7th, and the case assigned for trial the following Friday; that at the time no objection was urged and no intimation or suggestion made of any belief on his part as to the existence of any public excitement or prejudice directed against him; that on Wednesday or Thursday following the Tuesday on which he was arraigned and his case assigned for trial, summons for the witnesses for both the state and the defense were issued and served; that not until the day fixed for the trial and after the witnesses had been called under the order of the court and their presence ascertained, and the court had called the case for trial, and the sheriff was ready to draw the jury to try it, did counsel for the defendant offer to file the application for change of venue; that when they did, at that late hour, present it, they asked to have it set for trial at some convenient time in order to procure witnesses in support of the application; that the court thereupon refused to receive the motion or to consider it because, for one reason, it came too late, the case having already been called for trial; that while, under exceptional circumstances clearly appearing, an application such as this might be timely though presented after a case is called for trial, or even at a later stage, there were no such exceptional circumstances in the instant case appealing to the discretion of the court; that, for another reason, no notice had been given to the district attorney as required by law; and that, finally, the court was satisfied the motion was made, merely, for delay.

In matters pertaining to delays in criminal causes, such as applications for change of venue, continuances, etc., much reliance is placed upon the discretion of the trial judges, and unless the abuse of such discretion be clearly shown, the decision will not be interfered with. Knoblock's Crim. Dig., verbo "Change of Venue," p. 405.

See, also, State v. Chambers, 45 La.Ann. 38, 11 So. 944; State v. Foreman, 45 La.Ann. 1048, 13 So. 797; State v. Dent, 41 La.Ann. 1083, 7 So. 694; State v. Curtis, 44 La.Ann. 322, 10 So. 784.

A motion for change of venue is properly overruled when it is manifest that it is made for the purpose of delaying the trial. State v. Fulford, 33 La.Ann. 681.

Where the application for a change of venue is made by the defendant at a late day in the progress of the case, and without timely notice to the district attorney, the application will be denied -- was the ruling in State v. Curtis, 44 La.Ann. 322, 10 So. 784.

The application for change of venue in the instant case is held, under the circumstances as set forth by the trial judge, not to have been timely and not to have been made in accordance with the requirements of the statute, and his ruling in refusing to entertain the same is upheld.

A second bill of exceptions states the defendant offered Humphreys and Chancellor as witnesses to prove that the deceased had, a short time before the homicidal assault was made upon him, made indecent proposals to the wife of defendant for criminal conversation with her, and that this fact had been communicated to the accused late in the evening preceding the morning of the killing, which testimony, on objection by the state, was ruled not admissible.

This ruling was not erroneous. Even in case of adultery, the killing of the adulterer deliberately, and upon revenge, is held by Mr. Wharton to be murder. Wharton's Crim. Law (9th Ed.) § 459.

And he adds that evidence of the adultery is only admissible when the time of the husband's discovery of it is brought so near to the homicide as not to allow space for cooling.

Here there was no charge of illicit relations actually subsisting between the accused's wife and the dead man, which had been brought to the knowledge of the husband and on which he in passion and before cooling time, acted. All that was sought to be...