State v. Sbisa

• Decision Date: 01 April 1957
• Docket Number: No. 43365,43365
• Citation: 232 La. 961,95 So.2d 619
• Parties: STATE of Louisiana v. Edwin H. SBISA.
• Court: Louisiana Supreme Court

Page 619

95 So.2d 619

232 La. 961

STATE of Louisiana v. Edwin H. SBISA.

No. 43365.

Supreme Court of Louisiana.

April 1, 1957.

Rehearing Denied May 6, 1957.

Byrnes & Wallace, Bernard J. Fonseca, New Orleans, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Malcolm V. O'Hara, First Asst. Dist. Atty., Louis Fenner Claiborne, Asst. Dist. Atty., New Orleans, for appellee.

FOURNET, Chief Justice.

The defendant, Edwin H. Sbisa, was charged in an indictment returned by the grand jury on March 1, 1956, with malfeasance in office, as denounced by R.S. 14:134,¹ the accusation being, in substance, that from the twentieth of May, 1953, to the first day of February, 1954, the defendant, then Captain of the Third District Police Station in the City of New Orleans, intentionally refused and failed to arrest members of the New Orleans Police Department under his authority and command, knowing that such police officers and other persons were committing public bribery, and permitted the said police officers to intentionally fail in their lawfully imposed duty to refrain from committing public bribery and taking no action to prevent or hinder such commission of public bribery. Prescription was expressly negated.

The indictment was quashed by the trial judge, Section A of the Criminal District Court for the Parish of Orleans, on motion of defendant based on the prescription of one year provided by R.S. 15:8,² but on appeal to Appellate Division No. 2 of the Criminal District Court the judgment of the trial court was reversed³ and the case went to trial on the merits in Section E.⁴ The defendant was convicted and sentenced to the maximum penalty provided by law in such cases, i.e., to pay a fine of $500 and serve six months in jail, and he prosecutes this appeal, assigning as error the action of the court in (a) denying the motion to quash on the ground of prescription, (b) denying the portions of defendant's motion for a bill of particulars in which he sought names of persons who conveyed knowledge to defendant of the public bribery said to exist or particulars as to the manner in which defendant received the knowledge with which he was charged; (c) allowing evidence of the existence of a system of graft in the Third District prior to the time defendant was assigned there and prior to the time charged in the indictment; (d) refusing the request of the defendant for production of a statement made by the main prosecuting witness to Assistant Superintendent of Police Guy Bannister in order that the witness might refresh his memory with respect to the contents thereof touching on a material aspect of the offense charged; and (e) denying the defendant's motion for a new trial, since there was neither circumstantial nor direct evidence to show that the defendant had knowledge of activity which would require the exercise of his official function. In the aforesaid relative order, Bills of Exception numbered 1 through 5 were reserved.

It would appear that there is merit in Bill of Exception No. 4, found under '(d)' in the above assignment of errors. The main prosecuting witness, Sergeant John Edward Bray, while under cross examination, admitted making a statement to Guy Bannister, Assistant Superintendent of Police, in connection with the investigation which cluminated in the indictment under which defendant is being prosecuted, which statement was reduced to writing; and after having first testified that he did not recall telling Bannister that he had a conversation with the defendant relative to the system of graft existing in the Third District nor whether in that statement he had in fact told Bannister that there were no such discussions between him and the defendant, and having stated that he had not been presented with a copy, he was asked whether a copy would refresh his memory and he said it certainly would, whereupon the defendant called for production of the statement; however, the Court maintained the objection raised by the District Attorney, who invoked decisions of this Court in the cases of State v. Vallery, 214 La. 495, 38 So.2d 148; State v. Williams, 215 La. 419, 43 So.2d 780, and State v. Labat, 226 La. 201, 75 So.2d 333, and to that ruling of the court the Bill was reserved. As pointed out by this Court in the case of State v. Weston, 232 La. 766, 95 So.2d 305, '* * * the pronouncements in the Vallery, Williams and Labat cases that the defense is not entitled to production of any written statement of a witness in the hands of the district attorney, appear to be too broad * * *.' It would seem that the interests of justice would be better served by having allowed this witness to refresh his memory with respect to a matter very material to a successful prosecution. This is particularly so because the State was relying solely on the testimony of the witness Bray to show knowledge by the defendant of the alleged graft being engaged in by his subordinates. Cf. Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447.

However, we prefer not to rest our decision on that Bill of Exception. Because of the first and fifth assignments of error, forming the subject matter of Bills of Exception Nos. 1 and 5, all of the evidence adduced on trial of the cause both on motion to quash⁵ and on trial on the merits, had to be read, and we are in full accord with the judgment of the Appellate Division of the Criminal District Court reversing the judgment of the trial judge quashing the indictment, for, as was aptly stated by the Presiding Judge in his written reasons, 'There is neither in the report of the Special Citizens Committee nor in the testimony of the witnesses in these proceedings a single reference, suggestion, or suspicion that Captain Edwin H. Sbisa had knowledge that public bribery was being committed by police officers and other persons within the jurisdiction of the Third District Police Station, * * * nor does the record contain anything even suggesting that Captain Sbisa had committed malfeasance in office so as to put the District Attorney or the Grand Juries on inquiry.' (the foregoing italics and others in this opinion are supplied), and on the merits, we are constrained to hold that there is no evidence of any probative value from which a conclusion can be drawn that the defendant had knowledge of the alleged public bribery that was being committed in his district by his subordinates and other persons.

Unquestionably, in the trial of a misdemeanor the trial judge is the sole judge of the facts of the case, as to which this Court has no apellate jurisdiction (La.Constitution of 1921, Article 7, Section 10); however, under the jurisprudence of this Court, when there is a total lack of evidence to support a fact essential to a valid conviction, then a question of law arises⁶ and it is the duty of this Court to reverse the conviction.

As pointed out by the trial judge in his Per Curiam to Bill of Exception No. 5, the defendant was not charged with the crime of having accepted bribes, but with the crime of malfeasance as defined by R.S. 14:134, which makes it a crime for 'any public officer or employee to intentionally refuse or fail to perform any duty lawfully required of him or for any public officer or public employee to knowingly permit any other public officer or public employee under his authority to intentionally refuse or fail to perform any duty lawfully required of him, etc.' It necessarily follows that to be guilty of the offense of malfeasance it was necessary for the evidence to show that Captain Sbisa had knowledge that Bray and others were accepting bribes from gambling establishments in the Third District--for it is obvious that if he had no such knowledge he could not intentionally fail to arrest them for doing so, or intentionally permit them to fail in their duty to refrain from accepting bribes.

During the course of the trial the State called eleven witnesses to the stand; of this number, nine testified that they had committed public bribery while members of the police department--seven being still on the payroll with the same rank held at the time of the offense,⁷ and one of those seven, Sgt. Fritcher, having stated he was promised security of his job if he testified. Of the nine who admitted to the commission of the offense, five were under the supervision of the defendant at one time or another during the time he served as Captain of one of the platoons of the Third District Police Station, i.e., between the dates of May 20, 1953, and February 1, 1954. Not a single witness, however testified that he had ever conveyed to the defendant the knowledge that there was a system of collecting money from gambling and lottery operations for 'protection,' or saw defendant receive a part; in fact, most of those admitting participation testified that the distribution was never handled openly, even among the men, and that as to the defendant especially, the matter was carried on in concealment; the witnesses denied having ever received any instructions not to make arrests in cases of law violation. On the contrary, the testimony shows that defendant instructed his subordinates to make arrests on all gambling places.

According to the record, the full control of the system of bribery that existed in the Third District until the spring of 1955 was in Sgt. John Edward Bray, the main prosecuting witness; it was he who directed collections, set the amounts to be paid, divided the proceeds and handled the distribution, having undertaken the project in 1951 upon the death of a man named Lacalie. Under Bray's direction Sgt. Fritcher, on his day off and dressed in civilian clothing, would call at locations to which he had been directed by Bray and would collect various amounts previously agreed to between Bray and the operator of the establishment, which cash money Fritcher would take to Bray's home....