State v. Scott

• Decision Date: 23 March 1959
• Docket Number: No. 44361,44361
• Court: Louisiana Supreme Court
• Parties: STATE of Louisiana v. Andrew J. SCOTT.

Page 530

110 So.2d 530

237 La. 71

STATE of Louisiana v. Andrew J. SCOTT.

No. 44361.

Supreme Court of Louisiana.

March 23, 1959.

Rehearing Denied April 27, 1959.

Harris M. English, Baton Rouge, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Duncan S. Kemp, Dist. Atty., Amite, W. M. Dawkins, Asst. Dist. Atty., Denham Springs, Leonard E. Yokum, Asst. Dist. Atty., Hammond, for plaintiff-appellee.

McCALEB, Justice.

On October 19, 1957, at about 2:00 p.m., appellant, a 20 year old Negro, accosted Mrs. Larecy Blount Graham, a white woman, at her residence located in a rural area of Livingston Parish. At the time he made his presence known, appellant was wearing a cloth mask and, when Mrs. Graham screamed, he struck her and her two children, aged seven and four, who were on the scene. After threatening Mrs. Graham and her children with an iron chisel he dragged her into a bedroom, where he raped her. Later in the day, appellant was apprehended for the crime and, on December 6, 1957, he was indicted for aggravated rape. A trial resulted in a verdict of guilty and, following the pronouncement of a death sentence, this appeal was prosecuted, in which appellant is relying on 11 bills of exceptions for a reversal of his conviction.

The first bill was reserved to the overruling of a motion to quash the indictment. This motion, while predicated on several grounds, was primarily levelled at the alleged insufficiency of the indictment to inform appellant of the nature of the charge against him.

The indictment is couched in the short form provided by Article 235 of the Code of Criminal Procedure (R.S. 15:235) and charges that, on the 19th day of October, 1957, appellant 'Did commit aggravated rape upon Mrs. Larecy Blount Graham at her residence about six miles north of Corbin, Louisiana in violation of Article 42 of the Louisiana Criminal Code.'

The short form for aggravated rape was tested and approved in State v. Chanet, 209 La. 410, 24 So.2d 670. Hence, it would serve no useful purpose to further discuss the question, particularly since counsel for appellant quotes the Chanet case in full in his brief and seemingly relies on it in support of his argument. This argument appears to be based on the premise that, although the use of the short form is not objectionable, appellant was entitled to a bill of particulars, which the judge ordered the State to furnish, and that, since the State did not fully comply with the Judge's order, the indictment is vulnerable and should be quashed. Stated in another way, counsel is apparently contending that since appellant is entitled under the Chanet and other cases to a bill of particulars as a matter of right when the charge is drawn under a short form, the failure of the State to supply all of the particulars requested by him has the effect of rendering the indictment invalid.

There is no merit in this proposition. The failure of the State to furnish the particulars requested by a defendant, who is charged under a short form, does not affect the validity of the indictment, as it is now well settled that a bill of particulars does not amend an indictment nor can it cure or aid its insufficiency in law. See State v. Dabbs, 228 La. 960, 84 So.2d 601, 602; State v. Straughan, 229 La. 1036, 87 So.2d 523 and State v. McQueen,230 La. 55, 87 So.2d 727. If the particulars furnished by the State do not give the accused all the information to which he is entitled and the judge will not require the district attorney to supply them, the remedy of the accused is to except to the judge's ruling so that it may be reviewed on appeal.

Before terminating our discussion of the motion to quash, we note that appellant has also assailed the indictment on the ground that there has been a systematic exclusion of members of the Negro race in the selection of the general venire by the jury commission.

This charge, which is made the subject of another bill of exceptions, cannot be considered on a motion to quash the indictment. Articles 202 and 203 of the Code of Criminal Procedure (R.S. 15:202 and 203) point out the procedure for making objections to an array or venire and the time when such objections are to be pleaded. Denial of equal protection of the law cannot be raised on a motion to quash an indictment, which addresses itself to the legal sufficiency of the pleading on its face and not to disqualification of the personnel bringing the charge, which can only be ascertained by proof.

Bill of Exceptions No. 2 was taken to the failure of the State to comply with appellant's motion for a bill of particulars. In this motion, appellant sought information (1) as to the exact hour and time of the commission of the offense charged in the indictment; (2) the place and locality of the offense and (3) the circumstances and facts surrounding the commission of the offense, the manner of the acts by either appellant or complainant in the commission of the offense and whether or not it took place inside a room or other part of a residence or at some definite location outside. On the same day the motion was filed, the judge ordered the district attorney to furnish the particulars requested therein by Tuesday, March 11th and fixed Thursday, March 13th for the disposition thereof. In compliance with this order, the district attorney timely filed his bill of particulars in which he set forth the information requested in paragraphs (1) and (2) of appellant's motion by stating the locality of the offense and the approximate time (2:00 p.m.) of its commission but refused to furnish the details demanded in paragraph 3 of the motion on the ground that this would compel him to disclose his evidence.

According to the per curiam attached to this bill, by which we are bound, the judge sets forth that counsel for appellant telephoned him on the night of March 12th and advised that he was not going to make any contest on the bill of particulars and that, in view of this, he ruled that this was a waiver by appellant of any objection he may have had to the particulars furnished by the State.

It appears that, on March 17th (the date set for the trial), counsel for appellant stated 'Merely for the purpose of the record I wish to except to the ruling of the Court and reserve a bill and attach the motion for and answer to the bill of particulars'. Yet, in this Court counsel argues, for the first time, that the judge should have required the State to furnish particulars as to the way the rape was committed.

R.S. 14:42 provides that the offense of aggravated rape is committed under any one or more of the following circumstances: (1) where the female's resistance is overcome by force; (2) where she is prevented from resisting by threats of great and immediate bodily harm accompanied by the apparent power of execution and (3) where she is under the age of 12 years. If the motion for the bill of particulars filed by appellant had specifically requested this information, there is no doubt that the judge would have been obliged to order the State to furnish it, in view of our decision in State v. Holmes, 223 La. 397, 65 So.2d 890, where it was held that, in a prosecution under the short form for a crime which may be committed in several designated ways, the accused is entitled, upon his request, to be informed of the specific way or ways relied on by the State. But an examination of appellant's motion for particulars reveals that he was attempting to require the State to furnish him with the details of its evidence, to which he was not entitled. State v. Poe, 214 La. 606, 38 So.2d 359 and State v. Michel, 225 La. 1040, 74 So.2d 207. And, while the motion is unquestionably of such broad import as to include information respecting the way in which the rape occurred, such information was neither specifically requested nor was any such demand ever directed to the attention of the trial judge. On the contrary, as stated by the judge, counsel for appellant abandoned any challenge upon the sufficiency of the answer of the State to the motion for a bill of particulars. In these circumstances, the complaint, raised for the first time in this Court, comes too late.

Bill of Exceptions No. 3 was reserved to the overruling of appellant's motion for a change of venue, which was based mainly on the grounds that appellant was a young Negro, a resident of Baton Rouge, who was without friends or acquaintances in Livingston Parish, charged with the aggravated rape of a well-known white woman of that Parish, who had many friends and relatives therein, some of whom had already been drawn on the general venire, and that, due to the notoriety of the case through newspaper reports and word of mouth, there was so much prejudice created against him throughout the Parish, particularly because of his race, it would be impossible to secure an unbiased and unprejudicial jury which would give him a fair and impartial trial.

In his per curiam to this bill of exceptions, the judge asserts that appellant failed to prove that he could not get a fair trial in Livingston Parish; that most of the witnesses summoned by him testified to the contrary and that, in addition thereto, many prominent citizens of the parish called by the prosecution stated without equivocation that there had been no widespread antagonism against Negroes generally, no mob demonstrations against appellant and that they knew of no reason why he could not obtain a fair trial in the Parish.

The burden of establishing that an applicant cannot obtain a fair trial in the parish where the crime was committed rests with him. The test is whether there can be secured with reasonable certainty from the citizens of the parish a jury whose members will be able to try the case on the law and evidence, uninfluenced by what they may have heard of the matter and who will give the accused full benefit of any reasonable doubt arising either from the evidence...