State v. Roberson
| Decision Date | 13 July 1925 |
| Docket Number | 27303 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. ROBERSON |
Rehearing Denied October 6, 1925
Appeal from Fourth Judicial District Court, Parish of Ouachita Percy Sandell, Judge.
Howard Roberson was convicted of murder, and he appeals.
Affirmed.
George Wesley Smith and Hugh T. Layne, both of Monroe, for appellant.
Percy Saint, Atty. Gen., Percy T. Ogden, Asst. Atty. Gen., and David I. Garrett, Dist. Atty., and Sterling M. Newton, Asst Dist. Atty., both of Monroe (Harry H. Russell, of Monroe, of counsel), for the State.
The defendant and Luther Hays were indicted for the murder of Adolph Epstein in Ouachita parish on March 25, 1924. They were tried, convicted, and sentenced to be hanged; but on appeal to this court the verdict and sentence were avoided and the case remanded. 157 La. 974, 103 So. 283. Thereafter, on defendant's motion, the court ordered a severance, and defendant was tried alone. This trial also resulted in a verdict of "guilty as charged," and defendant was again sentenced to be hanged. From this verdict and sentence he prosecutes this appeal.
There were four exceptions noted, and bills were reserved to the court's rulings thereon during the trial. These bills are not numbered in the order in which they were taken. We will ignore the numbering and consider them in their proper order. The first bill (No. 4 in the transcript) was reserved to the overruling of a motion for a change of venue. The motion is based upon the alleged existence in the parish of Ouachita of a public sentiment against the accused so general and fixed as to affect and influence the verdict of any jury that might be selected in that parish to try the case. On the trial of the motion defendant called and examined 34 witnesses. All of these witnesses testified that the crime had been generally condemned, and that there was a strong public demand for the punishment of the perpetrators of it, but all of them except one, the ex-sheriff of the parish, testified that the defendant could obtain a fair and impartial trial in the parish of Ouachita. Defendant also offered various issues of the Monroe News-Star, a local newspaper, in which there appear detailed recitals of the homicide, of the efforts made by the officers to fix responsibility for it, of the arrests which followed, of the trial, conviction, and sentence of the accused, and of the appeal and reversal of the verdict and sentence by this court. The state offered no evidence on the trial of the motion, but submitted it on the showing made by defendant.
Applications for a change of venue are addressed to the sound discretion of the trial judge and unless an abuse of such discretion is shown his ruling will not be interfered with. State v. Ford, 37 La.Ann. 443; State v. Causey, 43 La.Ann. 897, 9 So. 900; State v. Gonsoulin, 38 La.Ann. 459; State v. White, 30 La.Ann. 364; State v. Bunger, 11 La.Ann. 607; State v. Daniel, 31 La.Ann. 91; State v. Dent, 41 La.Ann. 1082, 7 So. 694; State v. Abshire, 47 La.Ann. 542, 17 So. 141.
"Where there is no mandatory statutory provision, the general rule is that an application for a change of venue in a criminal case is addressed to the sound discretion of the court, and for this reason its refusal is not reversible error unless it appears from the facts presented on the application that the court acted unfairly, or that there was a palpable abuse of the judicial discretion," etc. C. J. vol. 16, p. 204.
Defendant's motion is based upon the alleged existence of a general prejudice against him. It is not sufficient to show that prejudice exists against the accused, but the mover must clearly show that the prejudice is so general as to prevent him from obtaining a fair and impartial trial.
While the incidents of the trial which followed were not before the court when defendant's motion was heard and denied, these incidents may, nevertheless, be considered here as aids in enabling us to arrive at a proper appreciation of the correctness of the ruling complained of.
The record discloses that about six months had elapsed since the first trial of the case; that there was no unusual demonstration and no exhibition of hostility of any kind towards the accused during the trial; that 12 jurors competent to try the case were selected without difficulty, and counsel for defendant conceded, in the argument before this court, that the trial was exceedingly orderly throughout; and that the officers and attaches of the court courteously extended him every consideration to which he was entitled. In fact, counsel said: "The court moved as smoothly as a well-oiled machine under skillful guidance." The proof offered in support of the motion failed to show feeling or excitement or hostility towards the accused. On the contrary, 33 of the 34 witnesses called by defendant, the majority of whom were called or drawn as jurors to try this and other cases, testified that they had no prejudice against the accused, and that he could secure a fair and impartial trial before a jury of the vicinage. Defendant, however, insists that the articles which appeared in the Monroe News-Star prior to and during the first trial had so thoroughly crystallized public sentiment against the accused that, notwithstanding the lapse of time, any jury selected in the parish of Ouachita to try defendant would be unconsciously influenced thereby. This is merely an assumption of defendant. No proof was offered in support of it except the issues of the newspaper which are in the record.
Too much weight should not be given to newspaper articles. State ex rel. Rogers v. Gray, 113 La. 671, 37 So. 597.
"The existence of prejudice however bitter and violent at a given time, will not authorize a change of venue if it is fairly shown that the excitement and prejudice have subsided and that a jury can be obtained which will render a verdict regardless of public opinion." C. J. vol. 16, p. 206.
The fact that prejudice may exist at one term of the court is not evidence that it exists at a subsequent term. Moore v. State, 49 Tex. Crim. 499, 96 S.W. 321.
We are of the opinion that the trial judge properly overruled the motion for a change of venue.
Defendant's second bill (No. 3 in the transcript) was reserved to the overruling...
To continue reading
Request your trial