State v. Roberson

• Decision Date: 02 February 1925
• Docket Number: 26900
• Citation: 103 So. 283,157 La. 974
• Court: Louisiana Supreme Court
• Parties: STATE v. ROBERSON et al

103 So. 283

157 La. 974

STATE v. ROBERSON et al

No. 26900

Supreme Court of Louisiana

February 2, 1925

Rehearing Denied March 2, 1925

Appeal from Sixth Judicial District Court, Parish of Ouachita; Fred M. Odom, Judge.

Howard Roberson and Luther Hays were convicted of murder, and they appeal.

Reversed, verdict set aside, and new trial granted.

George Wesley Smith, of Rayville, and Hugh T. Layne, of Shreveport for appellants.

Percy Saint, Atty. Gen., and David I. Garrett, of Monroe (W. H Thompson, of Winnsboro, and Percy T. Ogden, of Crowley, of counsel), for the State.

ST. PAUL, J. LAND, J., dissents, OVERTON and BRUNOT, JJ concurs. THOMPSON, J., takes no part.

OPINION

ST. PAUL, J.

The defendants, Howard Roberson and Luther Hays, were jointly indicted, tried, convicted, and sentenced to death, for the murder of one Adolph Epsteine. Their appeal presents seven bills of exception. Before going into these we state the surrounding facts on which they are largely based.

I.

Swartz is a small settlement in the great gas fields of Ouachita parish; there the accused resided.

On the night of March 25, 1924, Adolph Epsteine, a small storekeeper near Swartz, unmarried and living alone, was secretly and brutally murdered in his store.

On July 26, 1924, the defendant Luther Hays was charged with an assault with intent to kill (wholly disconnected with the Epsteine murder) and was placed in the jail, where he has ever since been (and held incommunicado until counsel was appointed for him in this case).

On the night of August 14, 1924, one D. A. Shumaker, an evangelist, was shot and fatally wounded in his tent at Swartz, for no apparent reason, and by some person or persons then unknown.

This aroused some public excitement in the parish, and, from investigations, made three parties were suspected of murdering Epsteine, to wit, these two defendants, Howard Roberson and Luther Hays, and also one Willie Stone, who seems to have disappeared from this case except in so far as his name appears in connection with a confession given by the defendant Hays, of which more hereafter.

On Wednesday, September 3, 1924, the parish grand jury met and indicted both these defendants for the murder of Epsteine, and also defendant Roberson for the murder of Shumaker.

On the same day Messrs. E. T. Lamkin and C. W. Easterling of the local (Monroe) bar were appointed to represent the accused "in their arraignment"; whereupon the accused were at once arraigned and pleaded not guilty, "with the reservation to file any preliminary proceedings later." It will be observed that Messrs. Lamkin and Easterling were appointed to represent the accused only in "their arraignment," and it does not appear that these counsel took any further part in the defense of the accused.

On Monday, September 8th, the trial judge called a special session of court for the following Monday, to wit, September 15th.

On Wednesday, September 10th, the trial judge appointed, to represent the accused in both cases, Mr. Hugh T. Layne of the local bar, and Mr. George Wesley Smith of an adjoining parish, and fixed both cases for trial on Monday, September 15th.

These appointments were made at about 3 o'clock in the evening; or, at any rate, counsel received notice thereof only about that time. Whereupon, counsel immediately protested that the intervening four days, one a Sunday, would not afford sufficient time to prepare for the defense of two murder trials; and since the circumstances of the two killings, as above indicated, show that there could be but one defense to either charge, to wit, an alibi, it is clear that in those four days, one a Sunday, counsel must prepare to account for the whereabouts of both Hays and Roberson from sundown of March 25th to sunrise of March 26th, and of Roberson from sunset until after midnight of August 14th. But, counsel took nothing by their protest.

On Monday, September 15th, this case was called for trial. Whereupon they asked for a continuance on the ground that they had not had time to prepare their defense. To which they annexed their own affidavit, and the affidavits of their counsel, as follows:

"1. Personally came and appeared George Wesley Smith who being duly sworn, says:

"That he is one of the attorneys appointed to defend Howard Roberson and Luther Hays, charged with the murder of Epsteine, and Howard Roberson, charged with the murder of Shumaker; that he and Hugh T. Layne, were appointed Wednesday, September 10th, at 3:30 o'clock in the afternoon, and that he saw his clients for the first time in his life shortly thereafter; that he obtained from his clients during an interview, lasting over two hours, all the information possible at that time; that he was compelled to be in Little Rock, Ark., on Thursday, to fill an engagement previously made, returning to Monroe about 5 o'clock on Friday morning; that he entered upon the active preparation of these cases before 8 o'clock on the same morning, and that every waking hour since that time has been spent in preparing these cases for trial.

"Affiant states that on Friday he went to Swartz and spent a good share of the day there interviewing and searching for witnesses; that Saturday was spent in interviewing witnesses who came to Monroe, or whom affiant found in Monroe; that the greater part of Sunday was spent in and around Swartz, hunting witnesses; that Friday night, Saturday night, and Sunday night affiant spent in his office until late in the night searching out the law applicable to the case, arranging and classifying the evidence already secured, and in preparing motions which he felt ought to be filed.

"Affiant states that he has been diligent, and has done everything humanly possible to prepare these cases for trial, but has not been able to do so.

"Affiant was appointed by this court to defend these men charged with two murders, and he feels it his duty to inform the court as to the situation, and to state to the court that it has been impossible to get these cases ready for trial within the short time intervening between the appointment and the trial, and, aside from that, affiant feels that he owes it to himself to leave in the record of this case, his own protest, as a citizen, as a lawyer and officer of this court, and as one of the attorneys for the accused, against any unseemly haste in judicial proceedings where the life or liberty of a human being is at stake, and particularly the unseemly haste in this case.

"Having done so, affiant feels he has done his duty to the court, to himself, and to his client, and let come what may his own conscience will henceforth remain untroubled."

2. "Personally came and appeared Hugh T. Layne, who being duly sworn deposes and says:

"That he is one of the attorneys appointed by this honorable court to defend Howard Roberson and Luther Hays, charged jointly with the murder of Adolph Epsteine, No. 17691 on the criminal docket, and to defend Howard Roberson, charged with the murder of Shumaker, No. 17692, on the criminal Docket.

"That he and George Wesley Smith, were appointed, Wednesday September 10th, at 3:30 o'clock in the afternoon, and that they saw their clients, for the first time, some time immediately after their said appointment.

"That said cases, both of them, were set for trial on Monday September 15, 1924, under the protest and without the consent of either counsel so appointed.

"That he has read the affidavit of George Wesley Smith, pertaining to and setting out the handicaps and lack of time to prepare a defense for the accused, and that all of the factstherein set out are true, and he does hereby corroborate each and every fact so stated therein.

"Affiant further declares under oath, that for the following reasons, he nor his associate, George Wesley Smith, nor both of them jointly, have not had sufficient and a just period of time in which to prepare a proper defense for the accused.

"He has had only three clear days since his appointment to prepare a defense for the trial of two murders, cases both set for trial the same day.

"That for lack of sufficient time, he has not been able to locate and talk with a number of persons whose testimony would be of a material benefit to the defense, and that if he had sufficient time, he would locate said parties and have them summoned. * * *"

What then transpired is shown by the minutes of court for that day, which we here transcribe in full; after which the trial proceeded, with the result stated in the opening paragraph of this opinion. Said minutes being as follows:

"The accused and each of them being present in open court and represented by their attorneys, Hons. Geo. Wesley Smith and Hugh T. Layne, the accused, with permission of the court first had and obtained, withdrew their former pleas of not guilty, and filed a motion to quash. Motion taken up. Testimony adduced and closed. Motion to quash overruled. Bill of exception reserved by the accused. The accused and each of them were duly arraigned and pleaded not guilty. Case set for trial on this date. Motion for continuance filed, taken up and argued. At this hour, 3:30 p. m., the list of witnesses furnished by counsel for the defendants to be summoned in this case were called, 32 in number, 30 of [157 La. 980] whom answered present. The sheriff reporting that one witness, to wit, M. C. Lofton, is absent from the state of Louisiana, and has been for some time; and one witness, Mr. Kincade, is absent from the parish, and no service has been made upon him. It is now ordered that the further trial of this case be postponed until 7:30 p. m. on this date, and that, in the meantime, all witnesses called and who have answered shall assemble in the courtroom in charge of the...