State v. Pratt
| Citation | 233 So.2d 883,255 La. 919 |
| Decision Date | 30 March 1970 |
| Docket Number | No. 50014,50014 |
| Parties | STATE of Louisiana v. Lee Perry PRATT. |
| Court | Louisiana Supreme Court |
William E. Logan, Jr., Lafayette, for appellant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Bertrand De Blanc, Dist. Atty., Charles R. Sonnier, J. Nathan Stansbury, Asst. Dist. Attys., for appellee.
By bill of indictment filed September 15, 1967, Lee Perry Pratt was jointly charged with Claude Alexander with the crime of aggravated rape upon a young woman on September 4, 1967--the record reveals that the victim was sixteen years of age at the time the alleged crime was committed. LSA-R.S. 14:42. A severance was granted on November 10, 1967, after the hearing of preliminary motions. 1 Defendant was tried by jury, found guilty without capital punishment, and sentenced to a term at hard labor in the Louisiana State Penitentiary for the remainder of his natural life. He appeals to this Court from his conviction and sentence, presenting for our consideration twelve bills of exceptions. 2
Bill of Exceptions No. 1 was reserved when the trial judge denied defense counsel's request for additional information in answer to an application for a bill of particulars.
In application for a bill of particulars, defendant requested the following information:
'--31--
'Is it the contention of the State, that the accused committed aggravated rape of the victim because she resisted to the utmost but her resistance was overcome by force or that she was prevented from resisting by threats of great and immediate bodily harm accompanied by apparent power of execution or both?
'--32--
The State answered the above questions as follows:
(Emphasis ours.)
Counsel for the defendant contended that the answer was insufficient. Citing Article 480 of the Louisiana Code of Criminal Procedure and the Official Revision Comment thereunder, particularly sub-section (d), the trial court ruled that the District Attorney had sufficiently answered the inquiries requested.
Counsel for the defendant contends in this Court that disjunctive crimes must be charged in the conjunctive for the reason that a defendant in a criminal prosecution is entitled to know what accusation is relied upon by the prosecution, and if the offense is charged disjunctively or alternatively, the precise accusation against the defendant is left uncertain. Counsel further contends that prejudicial error was committed by the refusal of the trial court to order the State to specify in what manner the defendant was alleged to have committed the crime of which he was accused in order that he might know what accusation was relied upon by the prosecution. He argues that disjunctive or alternative charges are not authorized by Official Revision Comment (c) under Article 480 of the Code of Criminal Procedure.
Article 480 of the Code of Criminal Procedure recites:
'If an offense may be committed by doing one or more of several acts, or by one or more of several means, or with one or more of several intents, or with one or more of several results, two or more of such acts, means, intents, or results may be charged conjunctively in a single count of an indictment, or set forth conjunctively in a bill of particulars, and proof of any one of the acts, means, intents, or results so charged or set forth will support a conviction.' 3
We find that the phrase 'and/or' in the above answer to the bill of particulars did not prevent the defendant from knowing what accusation against him was relied upon by the prosecution. A reading of the answer discloses that it plainly alleges that the victim resisted the rape to her utmost, her resistance being overcome by force, And she was, Or she was, prevented from resisting the rape by threats of great and immediate bodily harm. It further alleges that the act was accompanied by the apparent power of execution. In other words, it is alleged in effect that the rape was committed under force and threats which were boyond the power of the victim to successfully resist. We find no limitation in the answer which would have prevented counsel's preparation of defendant's defense. We do not find a violation of the conjunctive rule; the use of the word 'or' under the allegations of the answer to the bill of particulars was superfluous.
The case of City of Shreveport v. Bryson, 212 La. 534, 33 So.2d 60, discussed in the Official Revision Comment (c) to Article 480 of the Code of Criminal Procedure, is not apposite. Therein, this Court held that a defendant was improperly charged when the affidavit filed against her alleged that she was driving under the influence of intoxicating liquor or drugs; disjunctive or alternative pleading was not permitted. It is understandable that drugs and liquor are two different substances, and that in order for an accused to adequately prepare her defense, she must know which of the substances allegedly influenced her.
It is well settled that the ruling of the trial judge denying an accused data sought in a motion for a bill of particulars will not be disturbed in the absence of a clear showing that the judge abused his discretion to the prejudice of the accused. State v. Andrus, 250 La. 765, 199 So.2d 867, 876. See, State v. Wright, 254 La. 521, 225 So.2d 201; Article 484, Louisiana Code of Criminal Procedure.
We find no abuse of discretion by the trial judge herein.
Bill of Exceptions No. 1 is without merit.
Bill of Exceptions No. 2 was reserved when the trial court overruled defendant's motion to quash the indictment filed against him for the following reasons:
1. The Jury Commission which selected the Grand Jury list and venire excluded women and members of the Negro race.
2. The Grand Jury list and Venire from which the Grand Jury was empaneled and the Grand Jury which found the indictment excluded women.
3. Citizens of the Negro race were included in the Grand Jury list and Grand Jury venire in such small numbers as to constitute only a token, having no relationship to the number of citizens of the Negro race as compared to the number of citizens of the Caucasian race in the general population in the Parish of Lafayette and in the Fifteenth Judicial District of the State of Louisiana.
4. The indictment filed against Lee Perry Pratt is invalid and illegal and should be quashed because it was returned by a Grand Jury empaneled from a Grand Jury venire made up contrary to the provisions of the Fifth, Sixth, Fourteenth, and Fifteenth Amendments to the Constitution of the United States.
Counsel for the defendant urges herein that Bill of Exceptions No. 2 contains three propositions, each of which is sufficient to quash the indictment: (1) There were no Negroes on the Jury Commission which selected the Grand Jury which indicted the defendant; (2) There were no Negroes on the Grand Jury which indicted the defendant; and (3) There were no women on the Jury Commission, Grand Jury, or Petit Jury.
Oliver J. LeBlanc, Clerk of Court, Lafayette Parish, Lafayette, Louisiana testified that Members of the Jury Commission herein were of the Caucasian race; that there had never been any Negroes on the Commission. This Commission of five members, including the Clerk of Court, is appointed by the district judge, who makes his own selection or secures recommendations from the Clerk of Court. Mr. LeBlanc stated that he had never made any recommendations to the judge, and that he did not know whether the names of any Negroes had been submitted to the judge for appointment.
Despite the fact that the Jury Commission included no Negroes in its composition, the evidence discloses no prejudicial exclusion. Under the circumstances, we find that the following from State v. Barksdale, 247 La. 198, 170 So.2d 374 (Cert. denied), 382 U.S. 921, 86 S.Ct. 297, 15 L.Ed.2d 236, is controlling:
See, State v. Marks, 252 La. 277, 211 So.2d 261.
The testimony attached to the instant bill discloses that the jury venire herein was selected from a cross-section of the Parish of Lafayette, and that names placed in the venire were chosen from various lists, such as the Telephone Directory, the City Directory, and...
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...may be committed by the use of different means, the means may be alleged in the alternative in the same count'); State v. Pratt, 255 La. 919, 233 So.2d 883 (1970) (`and/or' averment did not hamper defendant's ability to understand the nature of the charge or to prepare a defense.) See also ......
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