State v. Schwander
| Decision Date | 16 May 1977 |
| Docket Number | No. 59006,59006 |
| Citation | 345 So.2d 1173 |
| Parties | STATE of Louisiana, Appellee-Respondent, v. Peter SCHWANDER and Deborah A. Venezia, Appellants-Relators. |
| Court | Louisiana Supreme Court |
Alan James Boudreaux, Westwego, for appellants-relators.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Metairie, for appellee-respondent.
The defendants Peter Schwander and Mrs. Deborah Venezia were convicted of aggravated burglary, La.R.S. 14:60, and sentenced to imprisonment at hard labor for terms of thirty years and two years respectively. Two assignments of error are presented by their appeal.
The most serious issue is presented by Assignment 2. By this, the co-defendant Mrs. Venezia contends that the trial court erroneously denied her motion for acquittal at the close of the state's case. La.C.Cr.P. art. 778. 1
The uncontradicted testimony of the prosecuting witness shows:
He knew Mrs. Venezia and had been intimate with her in the past. She had visited the witness's apartment socially on several occasions.
On the morning of the burglary, she asked the witness if she could use his telephone. He conducted her to his bedroom. While she was using the telephone, she asked him for an area code for a long-distance city.
The witness had left the telephone book in the living room. When the went into the living room, he discovered the defendant Schwander had entered the apartment and had removed the victim's guitar from its case, i.e., was in the process of committing a burglary. Schwander following the victim back into the bedroom and commenced beating him.
Pertinently to the present facts, La.R.S. 14:60 provides: 'Aggravated burglary is the unauthorized entering of any inhabited dwelling . . . with the intent to commit . . . any theft therein, if the offender . . . commits a battery upon any person while in such place * * *.'
All of the essential elements of the offense are proved by the conduct of the defendant Schwander. However, with regard to Mrs. Venezia: (1) she entered the victim's dwelling with his consent and (2), so far as the record shows, was merely a spectator, not participating in any theft or in any battery upon the victim.
The state's theory, however, is that she participated in the crime as a principal, by securing entry to the apartment with the intention of facilitating the subsequent unauthorized entry into it by her companion, Schwander. 'All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.' La.R.S. 14:24.
For appellate purposes, the denial of a motion for acquittal does not raise a reviewable question of law unless there is a total lack of evidence to prove the crime or an essential element of it. State v. Douglas, 278 So.2d 485 (La.1973).
In the present instance, however, the state's uncontradicted evidence negates that Mrs. Venezia aided or abetted Schwander in the commission of the burglary or in any other way participated with him in it as a principal.
In addition to testifying to admitting Mrs. Venezia voluntarily to use the telephone, the victim positively testified that:
(1) When Schwander walked into the bedroom, she exclaimed to him, 'I told you to stay in the car.' Tr. 30, 33--34.
(2) When the victim left the bedroom to enter the living room where the burglary was taking place, Mrs. Venezia was unconcerned and made no attempt to stop him, although fully realizing he was going into the living room. Tr. 28--29, 34.
(3) He, the victim, did not observe Mrs. Venezia do any act, nor did she participate in his beating. Tr. 24, 33--34.
The state cannot point to any evidence at the trial by which the trial jury could reasonably infer that she aided and abetted in the burglary. Contrariwise, the uncontradicted testimony of the prosecuting witness shows that Mrs. Venezia was voluntarily admitted into the premises, did not herself participate in the burglary, and was as surprised as the victim by the unauthorized entry into her friend's apartment by Schwander, who was supposed to be waiting for her in the automobile outside.
A trial jury's inference that an accused aided and abetted in a crime cannot be 'mere speculation based upon guilt by association.' State v. Williams, 310 So.2d 513, 515 (La.1975). The issue of whether circumstantial evidence excludes every reasonable hypothesis of innocence, as required by La.R.S. 15:438, presents a reviewable issue of law. State v. Pryor, ...
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State v. Furgerson
...392 So.2d 651 (La.1980). Mere presence at the scene is therefore not enough to "concern" an individual in the crime. State v. Schwander, 345 So.2d 1173 (La.1977); State v. Jasper, 28,187 (La.App.2d Cir.6/26/96) 677 So.2d In the present case, as noted above, Furgerson's actions indicate much......
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State v. Massey
...states that all persons involved in the commission of a crime, whether present or absent, are equally culpable. State v. Schwander, 345 So.2d 1173, 1174–75 (La.1977). Whether a defendant actually fires the bullet that strikes and kills a victim is of no consequence and the defendant may be ......
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State v. Hampton
...14:24. However, the Defendant's mere presence at the scene is not enough to "concern" an individual in the crime. State v. Schwander, 345 So.2d 1173, 1174-1175 (La.1977). A principal may be connected only to those crimes for which he has the requisite mental state. State v. Holmes, 388 So.2......
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95-0667 La.App. 4 Cir. 7/10/96, State v. Bowman
...Supreme Court also noted that "[m]ere presence at the scene is not enough to 'concern' an individual in the crime," citing State v. Schwander, 345 So.2d 1173 (La.1977). Id. Finally, the Court The due process standard of review in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d ......