State v. Raby

• Decision Date: 08 October 1971
• Docket Number: No. 51055,51055
• Citation: 259 La. 909,253 So.2d 370
• Parties: STATE of Louisiana v. Sebeal RABY.
• Court: Louisiana Supreme Court

Page 370

253 So.2d 370

259 La. 909

STATE of Louisiana v. Sebeal RABY.

No. 51055.

Supreme Court of Louisiana.

Oct. 8, 1971.

Rehearing Denied Oct. 28, 1971.

Philip K. Jones, Edwin R. Woodman, Jr., Baton Rouge, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.

McCALEB, Chief Justice.

Appellant, Sebeal Raby, was charged in a bill of information with aggravated arson. Following his plea of not guilty the case was consolidated for trial with another criminal charge then pending against appellant for conspiracy to commit armed robbery. On the trial of these consolidated cases before a jury of twelve, a verdict of guilty in each case was returned on September 24, 1969. Thereafter, on October 28, 1969, on a hearing of appellant's motions in each case for a new trial and in arrest of judgment, the judge granted the motion for new trial in the criminal conspiracy to commit armed robbery case but denied the motions in the aggravated arson case, and appellant was sentenced to serve twelve years in the Louisiana State Penitentiary. ¹ Appellant has prosecuted this appeal from his conviction and sentence in that case, relying on fifteen bills of exceptions for a reversal.

In our examination of the pleadings and proceedings below, following the submission of the case to us for decision, we have found that the bill of information charging aggravated arson is couched in the same language and contains substantially the same allegations as the bill of information which was held to be fatally defective in State v. Leon Harold Butler, No. 51,026 of our Docket, decided by this Court on June 28, 1971, in which a rehearing was refused on August 12, 1971. See 259 La. 560, 250 So.2d 740.

The bill of information in the instant proceeding recites that Lloyd Jones, Sebeal Raby and James Thomas feloniously did violate R.S. 14:51 '* * * in that they intentionally damaged a dwelling located at 167 South 15th Street, Baton Rouge, Louisiana, by setting fire to said dwelling, whereby human life was endangered * * *.' This charge, in which the prosecutor elected not to use the short form, is identical with the bill of information in the Butler case except for the statement that the building set fire in this matter is alleged to be a dwelling, whereas it was alleged that it was a structure which was burned in the Butler case. In holding that the bill of information in the Butler case did not adequately charge the offense denounced by R.S. 14:51, we based our conclusion upon the failure of the prosecutor to allege that the offender intentionally set fire to the building or structure when it was foreseeable that human life might be endangered. Absent such a recital, when the short form is not used, renders the information violative of the accused's fundamental right to be '* * * informed of the nature and cause of the accusation against him * * *' as specified by Section 10 of Article I of the Louisiana Constitution. Since foreseeability (or anticipation, see R.S. 14:2) that human life might be endangered is the gravamen of aggravated arson, it must be alleged in order to state the offense--for, although an indictment need not be phrased in the language of the statute, it must state Every essential fact constituting the crime. Article 464 C.Cr.P.; State v. Bonfanti, 254 La. 877, 227 So.2d 916 (1969); and State v. Butler, supra.

In a supplemental brief filed in compliance with a request by this Court, the District Attorney concedes that the Butler case is indistinguishable but takes the position that that authority should be overruled. This we will not do. Albeit decided by a closely divided vote, the Butler case was fully reconsidered on the State's application for a rehearing, and the original opinion was sustained by the majority.

Additionally, the prosecutor contends that this Court is without right to nullify the defective bill of information because the bill has never been assailed by defense counsel; that it is not a matter within the scope of our appellate review as defined by Article 920 C.Cr.P. and that, in any case, appellant may, if the judgment is affirmed, pursue the post-conviction remedy of habeas corpus under Article 362(9) C.Cr.P.

There is no merit in these contentions. Article 920(2) of the Code of Criminal Procedure specifically recognizes the right of appellate review of any error '* * * that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.' It has long been our procedural law, statutory (R.S. 15:503, 15:558 and 15:560) and jurisprudential, that this Court may notice, on appeal, ex proprio motu, errors patent on the face of the record, such as fatally defective pleadings, even though no objection thereto has been raised below or by assignment of error here. See Article 920(2) C.Cr.P., Official Revision Comment (a).

For the reasons assigned the conviction and sentence are reversed and appellant is ordered discharged.

BARHAM, Justice (dissenting).

For the same reasons assigned in my dissent in State v. Butler, 259 La. 560, 250 So.2d 740, I dissent from the court's quashing the bill of information in the instant case and discharging this defendant. I am of the opinion, however, that the trial court committed error in the present case which requires us to reverse and remand.

The defendant Sebeal Raby was jointly charged with Lloyd Jones and James Thomas, but the district attorney elected to sever the information against Raby and try him separately. It was the State's attempt to use Lloyd Jones as a witness which led to reservation of several bills of exception. These bills raise the important legal issue of whether the State could read in the presence of the jury and offer in evidence a prior statement by the State's own witness, Jones, for the purpose of impeaching his testimony on the ground that he was hostile and his testimony on a material matter was against the State and a surprise.

The early rule in Louisiana following the common law was that the party calling a witness vouched for his credibility and could not impeach his testimony or attack his credibility. State v. Vickers, 47 La.Ann. 1574, 18 So. 639; State v. Robinson, 52 La.Ann. 616, 27 So. 124; State v. Gallo, 115 La. 746, 39 So. 1001. Gradually our courts began to recognize the jurisprudential trend throughout the country that there were exceptions to the hard and fast rule that the credibility of one's own witness could never be attacked. State v. Stephens, 116 La. 36, 40 So. 523; State v. Fletcher, 127 La 602, 53 So. 877; State v. Walters, 145 La 209, 82 So. 197; State v. Bodoin, 153 La. 641, 96 So. 501; State v. Corneille, 153 La. 929, 96 So. 813; State v. Glauson, 163 La. 270, 115 So. 484; State v. Ashworth, 167 La. 1085, 120 So. 865. These cases were decided before our 1928 Code of Criminal Procedure, and while recognizing the right of impeachment, they held, in general, that the prerequisites necessary to impeachment of one's own witness had not been established by the State--that is, the witness's hostility, the State's surprise, and testimony contradictory to an earlier statement on a material matter. Two cases, though recognizing the error, applied the harmless error rule. One case allowed the use of a prior statement to refresh the witness's memory rather than for impeachment or as an attack upon credibility.

The first case citing and relying on our Code of Criminal Procedure of 1928 was State v. Nash, 169 La. 947, 126 So. 434. ¹ Articles 487, 488, and 493 of the Code of 1928 were carried forward into our present Revised Statutes, Title 15, with the same numbers and in the same language. The pertinent sections of Title 15 read:

' § 487. Impeachment of own witness

'No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the Impeachment must be limited to evidence of prior contradictory statements.'

' § 488. Meaning of surprise

"Surprise' in the sense of the last preceding article does not arise out of the mere failure of the witness to testify as expected, but out of his Testifying upon some material matter against the party introducing him and In favor of the other side.'

' § 493. Foundation for proof of contradictory statement

'Whenever the credibility of a witness is to be impeached by proof of any statement made by him Contradictory to his testimony, he must first be asked Whether he has made such statement and his Attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.' (Emphasis here and elsewhere has been supplied.)

These statutes, which recognize the exception to the strict rule of never permitting a party to impeach his own witness, are a codification of our jurisprudence and of the common law. As first adopted, they were in accord with the majority rule then existing, and the principles which they embody are still the prevailing and orthodox rule. In summary, the rule which we follow and which is followed in the great majority of jurisdictions is: A witness who is hostile and surprises the party calling him by testifying adversely on a material matter may be impeached by a prior contradictory statement; the contradictory statement, however, can be used only to impeach the witness, has no testimonial value for the jury in its consideration of guilt or innocence of the accused, and the jury must be so instructed. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489; ² Annotation, 133 ALR 1454 and Supplements; McCormick on...