State v. Rini
| Decision Date | 02 January 1922 |
| Docket Number | 24914 |
| Citation | 151 La. 163,91 So. 664 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. RINI et al |
Rehearing Denied February 27, 1922
Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.
Joseph Rini and others were convicted of murder, and they appeal.
Reversed and remanded.
Lewis L. Morgan, of Covington, George J. Gulotta, of New Orleans Purser & Magruder and W. B. Kemp, all of Amite, and C. Sidney Frederick, of Covington (Chandler C. Luzenberg, of New Orleans, of counsel), for appellants.
A. V Coco, Atty. Gen., and M. J. Allen, Dist. Atty., of Amite (Robert R. Reid and Amos L. Ponder, Sr., both of Amite, and T. S. Walmsley, of New Orleans, of counsel), for the State.
Joseph Rini, Andrea Lamantia, Roy Leona, Joseph Giglio, Joseph Bocchio, and Natale Deamore were convicted ofthe murder of Dallas Calmes, and from sentence of death pronounced against them, appeal to this court.
Defendants moved to quash the bill of indictment on the ground that Herbert Broyles, one of the members of the jury commission, which selected the grand jury that indicted them, was not, at the time of the selection of that jury, a member of the commission; that he had vacated his office as jury commissioner by accepting the office of clerk of the town of Kentwood; and that, as he had participated in the selection of the grand jury when he was no longer a member of the commission, the grand jury thus selected was an illegal one, and the indictment which they presented was therefore null and void.
As section 3 of Act 135 of 1898 prohibits a person who holds any state, parish, or municipal office from being a jury commissioner, and as section 23 of Act 136 of 1898, as amended by Act 97 of 1900, under which Kentwood is governed, designates the clerk as an officer, and as the nature of his duties makes him one, the question therefore presents itself: Has he qualified as clerk? We are of the opinion that he has not. Article 161 of the Constitution of 1913 requires all officers, before entering upon the discharge of the duties of their respective offices, to take the oath prescribed by that Constitution. This Broyles has not done. The taking of the oath is essential in law to an acceptance of the office. A mere acting as such officer is not sufficient, although the person so acting, as is the case here, may have been elected or appointed thereto. State v. Glaude et al., 148 La. 353, 86 So. 895. Hence the motion to quash the indictment is not well grounded.
On the trial the state called as a witness Robert Thompson, and sought to elicit from him a statement made in his presence by Natale Deamore, one of the defendants. All of the defendants objected to this statement on the ground that it was not freely and voluntarily made. The court overruled the objection, according to the recital of the bill, on the ground that the statement was voluntarily made. The court, in its per curiam, also says that it was not a confession, but was more in the nature of a self-serving declaration.
The facts surrounding the making of the statement are as follows: Deamore was arrested on the morning of the murder, and was taken to Albany. At Albany he was delivered to several deputy sheriffs, who had him get into an automobile for the purpose of delivering him to the sheriff. At that time Deamore was handcuffed, and there was a rope around one of his legs. From the evidence of the deputies, when Deamore reached the automobile, he acted as if he did not care to get in it, and turned aside, at the same time cursing. Hoggatt, one of the deputies, then hit him over the eye with a pistol, which caused a wound in Deamore's forehead of approximately an inch and a half in length, and which caused the blood to flow rather freely. At this time he was hit or shoved by one Tom McCarroll. Deamore's evidence is to the effect that he had no intention of not getting into the automobile, but that he had difficulty in doing so, because of the fact that he was handcuffed and his legs were tied. When he got into the automobile, he fell against a deputy, who shoved him to the other side of the seat. The deputies then proceeded on their journey to deliver Deamore to the sheriff. After driving some three miles and a half, they overtook him. Deamore expressed a desire to talk to the sheriff, and the sheriff questioned him. The exact time of this questioning, in so far as it relates to the statement objected to and made by Deamore, does not clearly appear. We gather, however, that it was within an hour prior to the making of that statement. During the questioning, the sheriff slapped Deamore, not because he would not talk, but because he answered questions in a roundabout way, instead of answering them "Yes" or "No," which the sheriff desired him to do. The party having Deamore in charge, after the sheriff joined them, proceeded along the road, apparently in search of others. They reached a point where the sheriff heard a noise in the bushes, and the automobiles containing the party were brought to a stop. Every one got out of the cars except the deputy in charge of Deamore and Leotta, another prisoner, and went into the woods a short distance to ascertain whether the noise was caused by one of the men for whom they were searching. In about 10 minutes the party returned to their cars. About that time a person named Pulliam approached the car in which Deamore was sitting and asked him where he was from. Deamore replied that he was from New Orleans, and, continuing, he said (to quote from the evidence of one of the witnesses):
The record shows that no other question was asked him than the one above mentioned, relating to the place from which he came. At the time the statement was made the sheriff was some 40 yards off, and did not hear it. Hoggatt, who had hit him, was somewhere in the vicinity, though it does not appear that he was within hearing distance. There were several others present, among them, deputy sheriffs. Kemp, the deputy who had shoved him shortly before, at Albany, to the other side of the seat in the automobile, was sitting by his side, and perhaps also another person. No inducements or rewards were offered him there, nor at any other time prior thereto, to secure a statement, nor was any duress used, but the statement was voluntarily made, unless the making of it was induced or compelled by his prior mistreatment above detailed. It is true that Deamore mentions in his evidence that the officers informed him at Albany that they were going to take him to some place and hang him, but each of these officers testified that he heard no threats made there, nor at any time prior to the making of the statement, and, as they were in position to know, their evidence outweighs his.
The mere fact that officers have mistreated a prisoner who is in their charge does not make a confession made by the prisoner necessarily inadmissible as evidence, on the ground that it was not freely and voluntarily made. If the confession was not brought about by such misconduct, but voluntarily made, without the giving of hope that it would be to his temporal advantage to confess, or the offering of any reward, then the confession is admissible.
Our conclusion is that, while Deamore was mistreated by the officers prior to the time he made the statement, yet the mistreatment did not cause him to make it, either by putting him in a state of fear or otherwise. Pulliam, to whom the statement was made, spoke to him kindly. He was in no way responsible for the mistreatment. While Hoggatt had hit him an hour and a half before, yet thiswas not done with the end in view of bringing about the making of a statement. When the sheriff slapped Deamore, the latter had asked for the interview in which the slapping occurred, and the slapping was attributable only to the indirect manner in which Deamore answered questions, and was, to his knowledge, not intended to elicit any particular answer.
While such misconduct on the part of officers may put a prisoner in fear, and thereby bring about the making of a confession which would be inadmissible, yet we do not think that the statement was made because of fear arising from such misconduct. In our view that which caused Deamore to make the statement was that he was under arrest for the crime, and he, of his own motion, and without any offer of hope or clemency from any one, sought to extricate himself from his difficulty by tendering assistance to the officers. The motive for making the statement appears from the statement itself, wherein he condemns those who got him into the trouble, and offers to assist the officers in finding them. Therefore, finding that the statement was freely and voluntarily made, it was admissible as evidence, whether it be considered as a confession or a mere admission of certain facts, tending to incriminate, but falling short of a confession of guilt, or whether it be considered as a mere exculpatory statement.
Deamore, and some of the other defendants, those apparently under arrest at the time, were promptly taken to New Orleans for safe-keeping, where Deamore on the morning following his statement to Pulliam made a statement to Mr. Craven, an assistant district attorney of the parish of Orleans, which statement, according to the latter's evidence, is as follows:
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