State v. Rowan

• Court: Louisiana Supreme Court
• Writing for the Court: Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen.; HAWTHORNE
• Citation: State v. Rowan, 233 La. 284, 96 So.2d 569 (La. 1957)
• Decision Date: 28 June 1957
• Docket Number: No. 43474,43474
• Parties: STATE of Louisiana v. William S. ROWAN and Herbert Ray Mears.

Page 569

96 So.2d 569

233 La. 284

STATE of Louisiana v. William S. ROWAN and Herbert Ray Mears.

No. 43474.

Supreme Court of Louisiana.

June 28, 1957.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Scallan E. Walsh, and Thomas B. Pugh, Asst. Dist. Attys., Baton Rouge, for relator.

Major & Ponder, Kantrow, Spaht, West & Kleinpeter, Baton Rouge, for respondents.

HAWTHORNE, Justice.

We granted writs in this case solely for the purpose of reviewing a ruling of the district court ordering the State to elect and inform the defendants whether it intended to prosecute them under Subsection (1) or under Subsection (2) of Article 30 of the Louisiana Criminal Code, and if under Subsection (2), then to elect and inform the defendants whether the State would contend that both defendants were engaged in the perpetration or attempted perpetration of simple robbery or armed robbery.¹

Defendants-respondents, William S. Rowan and Herbert Ray Mears, were charged with murder in the short-form indictment authorized by Article 235 of the Code of Criminal Procedure. After defendants' motion to quash the indictment was overruled,² they filed a motion for a bill of particulars, in which the State was called upon, among other things, to inform the defendants whether they were being prosecuted under Subsection (1) or under Subsection (2) of Article 30 of the Louisiana Criminal Code, and if under Subsection (2), to state the felony the defendants were allegedly perpetrating when the killing occurred. In answer to the motion for a bill of particulars the State informed the defendants that they were being prosecuted for the crime of murder under both Subsection (1) and Subsection (2) of the article-under Subsection (1) in that the offense was committed while the defendants had the specific intent to inflict great bodily harm, and under Subsection (2) in that the offense was committed while the defendants were engaged in the perpetration of both armed and simple robbery. Counsel for defendants objected to this answer and called upon the State to elect. Pursuant to this objection the lower court entered the order set forth above.

It is averred by the State that these two defendants conceived the plan of allowing themselves to be picked up by an alleged homosexual whom they intended to beat and rob, that in the course of this venture they actually robbed and beat the deceased with their fists and with a large, heavy metal flashlight, and that as a result of this he died.

In the State's answer to the motion for a bill of particulars it informed the defendants that they 'had the specific intent to inflict great bodily harm upon the person of the Deceased'; that the defendants 'were at the time of the alleged offense (murder), engaged in the perpetration of simple robbery and armed robbery, both of which alleged crimes were actually consummated'; and, further, that 'the simple robbery and armed robbery were accomplished by the Accused while committing a battery upon the Deceased with the use of their hands and fists and subsequently by committing a battery upon the person of the Deceased while armed with a dangerous weapon, towit: a large, heavy metal flashlight and battery case, with which the Deceased was struck'.

Article 30 of the Louisiana Criminal Code describes two sets of circumstances under which the crime of murder can be committed, but it is obvious that this crime can be committed under any one of the two sets of circumstances, and also under a combination of the circumstances, set out in Subsections (1) and (2). The State's answer to the motion for a bill of particulars shows that the crime in the instant case is alleged to have been committed under circumstances set out in both subsections of the article. In short, murder can be committed under Subsection (1) or under Subsection (2) of the article or under both subsections at the same time, which is exactly what is alleged to have happened in the instant case. Consequently the judge erred in ordering the State to elect.

The cases of State v. Prince, 216 La. 989, 45 So.2d 366, and State v. Jackson, 227 La. 642, 80 So.2d 105, are complete authority for the conclusion that in the instant case the State should not be forced to elect.

Respondents say that if the answer of the State to their motion for a bill of particulars stating that they were being prosecuted for the crime of murder committed under both Subsection (1) and Subsection (2) of Article 30 be deemed sufficient and the State is not required to elect, then they cannot adequately prepare their defense to the charge since they are not sufficiently informed of the nature and cause of the accusation...