State v. Refuge
| Citation | 300 So.2d 489 |
| Decision Date | 30 August 1974 |
| Docket Number | No. 54597,54597 |
| Parties | STATE of Louisiana v. Sherman REFUGE. |
| Court | Supreme Court of Louisiana |
William L. Crull, III, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty, Gen., John M. Mamoulides, Dist. Atty., John Tooley, Asst. Dist. Atty., Ernest E. Barrow, III, Abbott J. Reeves, Special Asst. Dist. Attys., for plaintiff-appellee.
Sherman Refuge was charged by bill of information with armed robbery of Aubrey T. Harris, in violation of La.R.S. 14:64. He was tried before a jury, convicted by a unanimous verdict, and sentenced to twenty years' imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant reserved and perfected four bills of exceptions, upon which he relies on appeal; he also alleges error patent on the fact of the record. We affirm.
This bill was reserved when the trial court denied defendant's motions to quash the bill of information. These two motions to quash, one filed before the first prospective juror was sworn on voir dire and the other filed immediately after the defendant's charge and plea were read by the clerk to the jury, were based on the grounds that the bill of information was not signed by the District Attorney, or the Assistant District Attorney, whose name appeared at the top of the bill of information. Defendant relies on dicta in the case of State v. Durane, 153 La. 1021, 97 So. 26 (1923) to the effect that the Court in that case doubted that a verdict on a bill of information would be valid when the bill is signed by an assistant district attorney, who, instead of alleging that he in his proper person came into court and gave the court to be informed, alleges that another assistant district attorney did so, provided the defendant had moved to quash the bill and the error had not then been corrected.
Article 8 of the Louisiana Code of Criminal Procedure provides:
'Unless the context clearly indicates the contrary, official titles, such as clerk of court, coroner, district attorney, and sheriff, include assistants and deputies.'
The official Comment to the article states that it was the intent of the drafters to codify the well-established general principle that assistants may perform the duties of officials under whom they serve, citing State v. Petrich, 122 La. 127, 47 So. 438 (1908). This general principle also finds expression in C.Cr.P. Art. 934(5), where 'District Attorney' is defined as including an assistant district attorney. C.Cr.P. Art. 384 requires the bill of information to be made by the district attorney and signed by him. Read in context with Articles 8 and 934(5), this requirement is satisfied by the signing of the bill of information by an assistant district attorney, as was done in the case before us. Therefore, this bill is without merit.
The thrust of these three bills is defendant's contention that the alleged victim, Aubrey Harris, was not robbed of anything from his person or immediate control within the definition of La.R.S. 14:64:
The facts are these. On March 23, 1973, the Washington Bar in Gretna, Louisiana was the scene of an armed robbery. The money taken was the 'pot' in a game of cards, to which the players had each contributed varying amounts.1 The alleged victim, Aubrey Harris, was present at the time of the robbery, but was not at that particular time a participant in the card game. He was, however, a partner with the 'gamer', or the man who was running the game, and the two of them had placed an envelope containing twenty dollars into the 'pot' at the beginning of the game, the money therein belonging to both of them as partners. After the robber had taken the money, he insisted that the 'gamer' come with him. At that point, Aubrey Harris intervened, addressing the robber by name and urging him to leave the man alone and take only the money. The robber then threatened Harris and warned him not to refer to him by name again. The defendant, Sherman Refuge, was subsequently identified by Harris and several other eyewitnesses, and was charged with and convicted of armed robbery of Harris.
The defendant contends that Aubrey Harris had no control or possession over anything that was taken from the room; therefore, he was not robbed under the statutory definition of robbery. In his testimony Harris stated that he had no control over the money because it belonged to the players and was under the control of the gamer, Ernest J. Stewart. Additionally, defendant argues that the only force or fear of which Harris was a victim occurred after the money had been taken by the defendant; hence, the money was not taken by means of force or intimidation of Harris.
We reject these arguments. Taking property from 'the person' of another has repeatedly been broadened in scope to include taking From his presence. See State v. Cooper, 197 La. 1040, 3 So.2d 118 (1941); State v. Verret, 174 La. 1059, ...
To continue reading
Request your trial
-
State v. Nix
...timely results in a waiver of the right of the objecting party to attack the verdict on the grounds of the alleged error. State v. Refuge, 300 So.2d 489 (La.1974). The 'motion to strike' is unknown in the criminal law of Louisiana, and presents nothing for review. State v. Isaac, 261 La. 48......
-
State v. Williams
... ... Batiste, 318 So.2d 27 (La.1975). Additionally, we note that the type of irregularities alleged herein are not discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920(2); State v. Batiste, supra; see State v. Refuge, 300 So.2d 489 (La.1974). Accordingly, these alleged errors are not properly before us for review ... ASSIGNMENT OF ERROR NO. 3 ... Defendant contends that the trial judge erred in admitting into evidence over defense objection certain morgue photographs and identification ... ...
-
Aucoin v. Haney
... ... jurisdiction to "take, as given, the facts that the district court assumed when it denied summary judgment" and determine whether these facts state a claim under clearly established law ... Id. (citations omitted) ... Haney argues on appeal that even if all of ... Refuge, ... 300 So.2d 489, 490 (La.1974). Further, the actions of an assistant district attorney can bind the state. State v. Tanner, 425 So.2d 760, 763 ... ...
-
State v. Cooks
...control requirement of the armed robbery statute is satisfied when property taken is within the presence of the owner. State v. Refuge, 300 So.2d 489 (La.1974). This court has further noted that armed robbery may occur where property taken is not in actual contact with the victim. State v. ......