State v. Satcher

• Decision Date: 29 November 1909
• Docket Number: 17,845
• Citation: 124 La. 1015,50 So. 835
• Court: Louisiana Supreme Court
• Parties: STATE v. SATCHER et al

50 So. 835

124 La. 1015

STATE v. SATCHER et al

No. 17,845

Supreme Court of Louisiana

November 29, 1909

Appeal from Fifth Judicial District Court, Parish of Jackson; George Wear, Judge.

Ed Satcher and Frank McDay were convicted of manslaughter, and appeal. Affirmed.

Price &amp Price and Grisham, Oglesby & Stennis, for appellants.

Walter Guion, Atty. Gen., and C. P. Thornhill, Dist. Atty. (J. E Clayton and R. G. Pleasant, of counsel), for the State.

OPINION

MONROE J.

Defendants, having been prosecuted for murder and convicted of manslaughter, present their case to this court by means of the bills of exception, which will now be considered, to wit:

Bill No. 1. To the refusal of the court to grant a continuance.

This bill recites that, when on Wednesday, July 21, 1909, the case was called for trial, counsel for defendants announced that they were not ready for trial, for the reasons that F. W. Price, one of the counsel, was not employed until the night of Monday, July 19th, and that the employment of the other counsel, O. M. Grisham, had not been perfected until Tuesday, July 20th, and that they had not had time to prepare themselves; that the indictment had been returned "out of term time, on last week"; that defendants were in jail, without money, and depended on their friends to find the necessary funds and employ counsel, and that due diligence had been used; that defendants had caused summonses to issue on July 19th for two witnesses -- Fuller McIntosh, a white man, and Charley Smith, colored, and that the witnesses had not been served; "that they were absent, but could be had by next term of court;" that their evidence was material and necessary; and that defendants could not safely go to trial without it, "as more particularly shown by the motion for continuance, made part of the bill."

The bill further recites that the court overruled the motion for continuance, with the proviso that the state should admit that the witnesses, if present, would swear to what was set up in the motion, to which the state agreed, but the defendants further objected that they were entitled to the presence of the witnesses, if they could be had, which objection was also overruled.

The motion for continuance alleges that defendants' counsel have not prepared, and have not had time to prepare, for trial; that the indictment was returned on July 13th, the court not being then in session; that on Monday, July 19th, when the court opened for its regular session, defendants were arraigned, and that O. M. Grisham, one of their present counsel, represented them for that purpose, but stated that "he had not been employed in the case," which was then set down for July 21st; that from the time of their indictment until that of their arraignment they were in jail, in Vernon, 10 miles from a railroad, without money to employ counsel, and depending on the court to appoint counsel, or upon their relatives or friends to employ counsel; that on Monday night, July 19th, some of their relatives and friends employed F. W. Price, who lives in Ruston, in Lincoln parish, and that on Tuesday, July 20th, O. M. Grisham, who lives in Winnfield, was employed by other relatives and friends; that their said attorneys have not had time to prepare the case for trial; and that they have a good and valid defense.

The motion further alleges that defendants cannot safely go to trial on account of the absence of Fuller McIntosh, Charley Smith, and Will Goodwin, for whom they caused summonses to issue on July 19th, but who have not been summoned, and are not present; that each of said witnesses is necessary to the proper defense of the case; that they reside in the parish of Jackson; that they are not absent through any fault or contrivance of defendants, and that "they can, and will, be had present at the next term of the court." The motion further sets forth certain facts to which it is alleged that the witnesses will testify, and alleges that such testimony would be admissible and material. The motion is sworn to by the defendants, and we find in the record affidavits in support of it subscribed by the defendants' counsel, as follows, to wit: by O. M. Grisham, to the effect that he was employed to assist in the defense on Tuesday, July 20th; that, when he appeared for defendants on July 19th, it was only for the purposes of their arraignment, and for the reason that some of their relatives had spoken to him about his employment in the case, and it was expected he would be employed during that day; that since his employment in the case he has not had any time to prepare the case for trial, only having been employed on yesterday (Tuesday, July 20th), and has not prepared the case for trial; that the affidavit is not made for the purpose of delay, but to the end that substantial justice may be done. By F. W. Price, to the effect that "he was only employed * * * late Monday night, July 19th, at Ruston, Lincoln parish"; that since his employment he has not had time to prepare, and has not prepared, for the trial; and that the motion for continuance and the affidavit are not made for delay.

The judge a quo gives the following as his reasons for refusing to grant the continuance, viz.:

"The defendants were charged with having on April 3, 1909, murdered William Johnson, a negro, at Elmo, in Jackson parish, La., which is about eight miles from Vernon, and about eight miles from Ruston. They immediately fled from the scene of the killing, and went to Texas, but afterwards came back to Caddo Lake, in Caddo parish, where they were arrested, and afterwards incarcerated in jail, at Vernon, on June 23, 1909. Upon the finding of the coroner's jury on April 4, 1909, warrants were issued for the arrest of the defendants. The grand jury returned a true bill for murder against them, which was filed on July 13, 1909, and on the same day the sheriff served a copy of the indictment and of the venire on the defendants. The defendants were negroes, and lived on the plantation of Mr. Nat. Clinton, a white man, of means and influence, who it appeared, had from the very beginning interested himself in preparing their defense. Practically all of the witnesses lived on Mr. Clinton's place and all were negroes, except McIntosh and Ress. The trial disclosed a most thoroughly prepared defense. Mr. O. M. Grisham, one of the attorneys for the defendants, represented them in the arraignment on Monday, July 19, 1909; and in the argument on the motion for continuance he admitted that the question of his employment had been considered between himself, the defendants, and their friends during the previous week. It also developed during the trial that Mr. O. M. Grisham had gone to Elmo, the scene of the killing, during the week previous to the trial, and had there interviewed some of the most important witnesses for both the state and the defense. Mr. F. W. Price, another of the three attorneys for the defendants, admitted that he had been consulted the week previous with a view to employment by both the prosecution and the defense. The issues were very narrow, and the defendants were ably defended by experienced counsel, who during the trial showed great familiarity with the details of the defense. It also developed during the argument of the motion for continuance that the delay in employing counsel for defendants was not due to inability to do so, but to the desire to employ only the ablest attorneys, and there seemed to be some difference of opinion as to the choice of one attorney who was under consideration.

"Now, as to the absent witnesses, Fuller McIntosh and Charles Smith, the records of the court show that Fuller McIntosh has now pending against him four indictments for 'boot leging' whisky to those negroes and other persons on the night of the killing. He is a refugee from justice. His family have left the parish, and his whereabouts are unknown to the officers of the court. The district attorney admitted that, if he were present, he would swear to all that defendants had set up in the affidavit attached to the motion for continuance. It developed on the trial that he was not at the scene of the tragedy, but that he was at home when William Johnson was killed. As to the absent witness, Charles Smith, he is a transient negro railroad hand. He testified before the coroner's inquest, and his testimony was on file in court. It was not as strong for the defendants as was the statement set out in the affidavit, which the state admitted he would swear to if present. But, in addition to all the above, several other witnesses for the defendants swore to every material fact set up in the affidavits attached to the motion for continuance, and there were several other eyewitnesses to the killing at court during the entire trial who were not put on the witness stand by either the state or the defendants. After the conclusion of the trial, the court is convinced that the defendants put their entire defense before the jury, that they suffered no injury by the overruling of the motion for continuance, and that they had a fair and impartial trial."

In the motion for new trial filed by the defendants, it is alleged that the court erred in not granting them a continuance on the motion and for the reasons contained therein, but there is no special reference to the matters set up in the motion, nor does there appear to have been any attempt to show by testimony that defendants sustained any injury by reasons of lack of preparation by their counsel or of the absence of the witnesses, McIntosh and Smith, or that they gave the proper addresses at which those witnesses could, and should, have been found, or that the witnesses were then obtainable, or could thereafter be obtained.

The crime with which d...