State v. Rini

Decision Date29 December 1922
Docket Number25583
Citation95 So. 400,153 La. 57
CourtLouisiana Supreme Court
PartiesSTATE v. RINI et al

Rehearing Denied January 27, 1923

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.

Affirmed.

B. B Purser, of Amite, A. D. Henriques and George J. Gulotta, both of New Orleans, and W. B. Kemp, of Amite (Chandler C. Luzenberg, of New Orleans, of counsel), for appellants.

A. V. Coco, Atty. Gen., and Matt J. Allen, Dist. Atty., of Amite (Amos L. Ponder and Robert R. Reid, both of Amite, and T. S. Walmsley, of New Orleans, of counsel), for the State.

DAWKINS J. O'NIELL, J.

OPINION

DAWKINS, J.

Defendants, six in number, appeal from a conviction of murder and sentence of death. Numerous issues are raised by the record, and we shall proceed to consider them in their proper order.

Motion to Recuse the Trial Judge.

Defendants were once before convicted and sentenced to be hanged, but a new trial was ordered upon appeal to this court. Before going into the case a second time, a motion to recuse the lower judge was filed and overruled, and this presents the first matter which we are to review. The motion is not mentioned in the original brief, but was urged in oral argument and in a supplemental brief filed since the case was submitted.

We shall take up the first and third grounds of the motion together, since they involve similar points. It is charged:

(1) "That Hon. Robert S. Ellis has on numerous occasions discussed this case openly and publicly with the citizens of Tangipahoa parish, La., expressing his belief that your defendants were guilty of said charge of murder and should be hanged."

(3) "That said Hon. Robert S. Ellis, judge of this court, as these defendants believe and aver upon observation and information, is so convinced and believes so completely in the guilt of your defendants, that his attitude, opinions, and actions are so fixed, open, and antagonistic toward your defendants that it is impossible for your defendants to obtain a fair and impartial trial as long as the said Hon. Robert S. Ellis acts as presiding judge in this cause; and a presiding judge in a criminal case in Louisiana being, in effect, a thirteenth juror with veto power, and the said Hon. Robert S. Ellis having a fixed opinion as to your defendants' guilt, expressed both orally and in writing, in public and private, it is impossible for him to act as presiding judge in the trial of this cause in that impartial manner guaranteed to these defendants by the Constitution of the United States of America and the Constitution of the State of Louisiana."

The sum and substance of these allegations is that the judge has formed and expressed an opinion publicly and privately of the guilt of the accused. When it is considered that he was the presiding judge at a former trial of this same case, it is to be expected that he had and has an opinion upon the subject, and that he should have expressed it publicly. He saw and heard the witnesses and arguments of counsel, and was required, as a legal duty, to pass upon the question of innocence or guilt in disposing of the motion for a new trial which was urged at that time; and we can see no more harm to defendants in expressing that same opinion privately, based, as it must have been, upon the former hearing. If he expressed the belief that accused should be hanged, it amounted to nothing more than the statement of a legal result which the law itself imposed as a consequence of the former verdict, and which was the necessary effect of his former ruling. It is to be presumed that if the second trial developed the same facts and issues as the former one, his conclusions would be the same; yet we do not think it can be seriously contended that a trial judge is disqualified from again sitting in a case because of his having presided at the first trial. The allegations otherwise in these two paragraphs of the motion are merely the expression of strong conclusions by the pleader upon the result which it is claimed flows from the facts charged, which we have just discussed, and, we think, disclose no ground for recusation. In fact, our recollection is that one of the counsel for defendants, in oral argument, conceded that the having of an opinion of accused's guilt and the expressing of it would not disqualify the judge.

We next take up the second charge, in which it is said:

(2) "That the said Hon. Robert S. Ellis has discussed this case with the relatives of the deceased, Dallas L. Calmes, and those interested in the prosecution of the case, the prosecuting and other prospective witnesses, as to their testimony, and has privately conferred and advised with the attorneys representing the state in the prosecution of this cause."

In their supplemental brief, counsel for defendant first quote and rely upon the following provision of article 7 of the State Constitution:

"Sec. 3. No function shall ever be attached to any court of record, or to the judges thereof, except such as are judicial; nor shall such judges practice law."

We gather from the argument it is contended that in charging the judge with consulting and advising with the relatives of the deceased, prosecuting witnesses, and with the counsel for the state, the effect is the same as to say that he has assumed the role of an advocate for the commonwealth, in violation of the section of the Constitution just quoted. However, as was said in the recent case of State v. Judge (No. 25553) 152 La. 768, 94 So. 389, [1] under ordinary circumstances, there is nothing illegal or irregular in the judge discussing with the prosecuting witnesses, or any one else, a criminal case, in his official capacity, especially where, as here, the issue of guilt or innocence has to be determined primarily by a jury. On the contrary, it becomes his duty at times to do so, as in cases where he is applied to for making affidavits for warrants of arrest, or where a witness may be under apprehension as to his safety, or may know of any improper action or conduct of any one calculated to affect the trial; and the same is true with regard to his consulting with either counsel for the state or the accused, or any one else. It could hardly be said that in doing so he was either practicing law, or discharging any duties other than such as were judicial. A criminal case is not one between the deceased or his relatives and the accused, but the state, representing the sovereignty of the entire people, it is who hales an accused into court; and the judge by his oath and training is presumed to be insusceptible to such influences as affect the layman, called to decide a single case and unfamiliar with the theory and principles of the law. It will be observed that the charge states no facts as to improper conduct or subjects of discussion by the judge with the classes of persons named, but the bare fact of such consultations, leaving entirely to inference or suggestion that they were upon matters improper and prejudicial to the rights of accused. We think therefore that they amount to nothing more than the conclusions of the pleader upon allegations which, within themselves, constitute no cause for recusation.

The fourth, fifth, sixth, and seventh charges of disqualification set forth that the presiding judge, by virtue of having been district attorney from 1900 to 1908, and judge in said district from the latter date to the present time, occupies a position of leadership among the people thereof, and that his opinions are freely discussed, quoted, and given much weight; that his open and hostile expressions have caused an "under current of prejudice to run in the public mind against your defendants," and the atmosphere has become charged with said feeling of prejudice to such an extent "that many jurors, otherwise qualified, would subconsciously and unwittingly yield to the prejudicial influence with Hon. Robert S. Ellis presiding"; that because of the public interest in the present case, his said opinions have been generally discussed among the citizens from whom the jury must be drawn, and the situation "would be tantamount to a discussion of the facts before the jury even though the said presiding judge did not comment on said facts during the trial of this cause"; and that, regardless of his attempt to be fair, his said opinion and expressions would "imperceptibly influence said jury in reaching a decision adverse to your defendants." That the attitude of said judge toward defendants did not become apparent until during the former trial, and defendants did not believe that his mind was so fixed as to their guilt until after said trial and sentence. "That it is not the desire of the accused or their counsel in the filing of this motion to reflect upon the intelligence, integrity, or honesty of Hon. Judge Robert S. Ellis, yet they verily believe that by his said words and actions that he has placed himself in such a position that he should be recused from presiding in this case as trial judge."

The charges embraced in these four paragraphs of the motion are largely an elaboration of the first two quoted herein, and argumentative of the results or conclusions which the pleader claims will flow therefrom. Nowhere do they charge the judge with personal animosity toward the accused as such, or with anything other than that he has formed and expressed an opinion of their guilt. The same arguments would be applicable to any other case where the judge (presumably always a man of standing and influence in the community) had been called upon to make a ruling in a case exciting public interest, upon a motion for a new trial; and, in our opinion they recite no facts...

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22 cases
  • State v. Rideau
    • United States
    • Supreme Court of Louisiana
    • January 15, 1962
    ......442] reasonable doubt arising either from the evidence or the lack of it. State v. Rini, 153 La. 57, 95 So. 400 and State v. Faciane, 233 La. 1028, 99 So.2d 333 and authorities there cited. The power to grant a change of venue rests in the sound discretion of the trial judge, whose ruling will not be disturbed in the absence of a showing of clear abuse thereof.' . ......
  • State v. Faciane, 43541
    • United States
    • Supreme Court of Louisiana
    • November 12, 1957
    .......         The burden of establishing by legal evidence that applicant could not secure a fair trial in the parish where the indictment is laid rests with the applicant. [233 La. 1038] 56 Am.Jur. 68, Section 68, verbo 'Venue;' State v. Rini, 153 La. 57, 95 So. 400, 404; and State v. Roberson, 159 La. 562, 105 So. 621. And the test is not, as claimed by counsel but, rather, as pointed out in the Rini case: 'Can there be secured with reasonable certainty from the body of such citizens, with the use of the safeguards of the law, a jury ......
  • State v. Scott, 44361
    • United States
    • Supreme Court of Louisiana
    • March 23, 1959
    ...... State v. Rini, 153 La. 57, 95 So. 400 and State v. Faciane, 233 La. 1028, 99 So.2d 333 and authorities there cited. The power to grant a change of venue rests in the sound discretion of the trial judge, whose ruling will not be disturbed 441, 76 So.2d 523 and State v. Faciane, supra. abuse thereof. State v. ......
  • State v. Davis
    • United States
    • Supreme Court of Louisiana
    • November 22, 1923
    ...77 So. 588; State v. Nunez, 147 La. 394, 85 So. [154 La. 931] 52; State ex rel. Martin v. Judge, 152 La. 768, 94 So. 389; State v. Rini, 153 La. 57, 95 So. 400; and State v. Simone, 154 La. 73, 97 So. 302. In the case of State v. Morgan, 142 La. 755, 77 So. 588, we disposed of the question ......
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