State v. Schoonover

• Decision Date: 04 June 1968
• Docket Number: No. 48892,48892
• Citation: 252 La. 311,211 So.2d 273
• Parties: STATE of Louisiana v. Gilbert Lee SCHOONOVER.
• Court: Louisiana Supreme Court

Page 273

211 So.2d 273

252 La. 311

STATE of Louisiana v. Gilbert Lee SCHOONOVER.

No. 48892.

Supreme Court of Louisiana.

June 4, 1968.

Rehearing Denied June 28, 1968.

Bernard S. Dolbear, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Frank H. Langridge, Dist. Atty., Thomas P. McGee, Asst. Dist. Atty., for appellee.

SUMMERS, Justice.

Gilbert Lee Schoonover and his brother Willie Ernest Schoonover were jointly charged by bill of information with armed robbery. La.Crim.Code art. 64. Prior to trial Willie Schoonover pled guilty. Gilbert was tried, convicted and sentenced to serve fifteen years at hard labor. He appeals from the conviction, relying upon eleven bills of exceptions reserved to alleged errors in the proceedings in the trial court.

Bill of Exceptions No. 1 was reserved during voir dire examination when the assistant district attorney, in questioning one of the prospective jurors, asked him if he understood what was necessary, under the law, to make a party to a criminal transaction liable as a principal to the crime. The trial judge likewise sought to explain this point of law of the prospective juror.

Defense counsel objected to explanations of legal propositions on voir dire examination and his objection was overruled. We are satisfied that there was no abuse of the discretion allowed the trial judge in regulating voir dire examination, for the point of law did bear some explanation to test the prospective juror's ability to comprehend the evidence which would be relevant to the prosecution at the trial.

The extent to which counsel may examine jurors on their voir dire rests largely within the discretion of the trial judge. State v. Green,244 La. 80, 150 So.2d 571 (1963). A wide latitude in the exercise of the judge's discretion is allowed by a liberal attitude of the appellate courts. See State v. Hills, 241 La. 345, 129 So.2d 12 (1961). In general, however, we have not approved of lengthy statements of particular phases of law being expounded to jurors on their voir dire examination as a preface to interrogation, for this practice tends to facilitate attempts to commit the juror's vote in advance of deliberation. Care should be exercised by the trial court to prevent this result. La.Code of Crim.P. art. 357 (1928). State v. Bickham, 236 La. 244, 107 So.2d 458 (1958).

Bill of Exceptions No. 2 was reserved during voir dire examination when defense counsel objected to an explanation by the State's attorney of the law relating to conspiracy and to a question propounded by the State's attorney in which he sought to ascertain if the prospective juror understood the law relating to conspiracy. The objection was overruled. The bill of information in this prosecution charges that the crime was committed by two persons and, therefore, the crime necessarily involved a conspiracy. State v. Skinner, 251 La. 300, 204 So.2d 370 (1967). Evidence of a conspiracy would be relevant upon the trial, and the ability to understand the somewhat complex problems which might arise under the law of conspiracy was essential to the juror's ability to act intelligently in the case; therefore, there was no error in the ruling of the trial judge on this bill.

Bills of Exceptions Nos. 3, 4 and 5 were reserved to the refusal of the judge to give three special charges requested by the defense.

The first requested charge, which was refused and to which Bill No. 3 was reserved, read: 'Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the criminal consequences of his act.'

The evidence indicates the defendant Gilbert Schoonover and his brother Willie Schoonover robbed two service stations a few blocks from each other, minutes apart, as one continuous unlawful act. The defendant Gilbert Schoonover was the driver of the car, and his brother Willie Schoonover was the main actor who assaulted the victim in each instance.

In its general charge, the court instructed the jury in the language of Article 64 of Louisiana Criminal Code (Armed Robbery), Article 65 (Simple Robbery) and Article 67 (Theft). We think the requested charge is covered by reference to the language of these articles, together with the following extracts from the trial judge's written charge: 'An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential (to the crime of armed robbery)' (Parentheses added) and the following:

'It is essential that the, State should prove, not merely the use of force or intimidation, and the taking of the thing of value from the prosecuting witness, but, also that Such taking was with the intention to commit theft.' (Emphasis added.)

'Mere presence at the time the offense is committed without intention to participate or in any way contribute to its commission, is not sufficient to make one a principal.'

'Where a joint enterprise is sought to be shown, or it is the theory of the State that, parties jointly tried aided, assisted and abetted each other in the commission of the offense charged, it is not necessary that the State show that a formal concert of action or conspiracy was entered into between the parties. It is only necessary that the jury be convinced beyond a reasonable doubt by all of the evidence adduced that the parties did act in concert and together in the consummation of the criminal enterprise, and that their acts were knowingly and intentionally performed in the furtherance of a common purpose.'

The language quoted from the judge's general charge properly fulfilled the requirements of a charge of specific intent and the requested charge was therefore properly denied.

Bill of Exceptions No. 4 was reserved to the refusal of the court to give the following special charge:

'Where the circumstances indicate that an intoxicated condition has precluded the presence of a special criminal intent in a particular crime, this constitutes a defense to prosecution for that crime.'

In his general charge the judge charged the following on intoxication:

'Gentlemen, the general rule of law is that voluntary drunkenness does not exempt a man from criminal responsibility for his acts. A drunken man is as fully responsible for his acts as a sober man, though he may have been so drunk as to be temporarily deprived of his reason and rendered incapable of knowing what he was doing, unless the fact of drunkenness negatives the existence of a specific intent or knowledge which is an essential ingredient of the particular offense charged.'

The foregoing quotation from the general charge specifically covers the subject matter of this requested special charge. The requested special charge was, therefore, properly refused.

Bill of Exceptions No. 5 was reserved to the judge's refusal to grant the following special charge:

'The crime of armed robbery requires a specific intent to take something of value permanently by force or intimidation, through the use of a dangerous weapon.'

The portions of the general charge we referred to and quoted in connection with Bill of Exceptions No. 3 amply cover this requested special charge, and it was, therefore, proper for the court to refuse the charge.

Bill of Exceptions No. 6 was reserved to the judge's refusal to grant the following special charge:

'The defendant does not have to offer any evidence in his defense, but the prosecution must prove that he committed all of the elements of the crime charged beyond a reasonable doubt to a moral certainty.'

The general charge contained the following:

'The accused at the bar is presumed to be innocent until he is proven guilty.

The consequence of this rule of law is that he is not required to prove his innocence, but may rest upon the presumption in his favor until it is overthrown by positive, affirmative proof.

'The State has to prove every material allegation in the indictment and should the State fail to establish every ingredient necessary to conviction beyond a reasonable doubt, your sworn duty would be to acquit.

'This doubt must be a reasonable one, that is, one founded upon a real, tangible, substantial basis, and not upon a mere caprice, fancy or conjecture. It must be such a doubt as would give rise to a grave uncertainty raised in your minds by reason of the unsatisfactory character of the evidence; one that would make you feel that you had not an abiding conviction to a moral certainty as to the defendant's guilt. * * *'

The matter contained in the requested charge, it may be seen, was given in the general charge, and it was proper for the trial judge to refuse the requested charge. Bill of Exceptions No. 6 is therefore without merit. La.Code Crim.P. art. 390 (1928).

Bill of Exceptions No. 7 requested that the judge charge the jury that 'The verdict of the Jury, either to acquit the defendant or to convict him must be by the unanimous vote of the entire jury.' The trial judge refused to give this charge because it was not correct. We agree.

Article VII, Section 41, of the Louisiana Constitution provides that 'cases, in which the punishment is necessarily at hard labor (are triable) by a jury of twelve, nine of whom must concur to render a verdict.' The prosecution at bar is under Article 64 of the Louisiana Criminal Code which fixes the penalty for armed robbery at hard labor for not less than five nor more than ninety-nine years. This prosecution is, therefore, within those cases contemplated by the quoted provisions of Section 41 of Article VII of the Constitution.

In spite of the clear language of the Constitution and Article 64 of the Criminal Code, appellant argues 'the simple hypothesis that armed robbery is a very serious crime and yet a person can be convicted as in the instant case when a 'reasonable doubt' may exist in the jury's mind * * *.' The theory being that since only nine jurors voted for conviction in this case, the...