State v. Scruggs

• Decision Date: 18 January 1928
• Docket Number: 28883
• Citation: 116 So. 206,165 La. 842
• Court: Louisiana Supreme Court
• Parties: STATE v. SCRUGGS

116 So. 206

165 La. 842

STATE v. SCRUGGS

No. 28883

Supreme Court of Louisiana

January 18, 1928

Rehearing Denied March 12, 1928 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Fourth Judicial District Court, Parish of Ouachita; Percy Sandel, Judge.

Vernon Scruggs was convicted of murder, and he appeals.

Affirmed.

Zach T. Heard, Thomas C. Newton, and Sterling M. Newton, all of Monroe, for appellant.

Percy Saint, Atty. Gen., and David I. Garrett, Dist. Atty., and J. B. Thornhill, Asst. Dist. Atty., both of Monroe (E. R. Schowalter, Asst. Atty. Gen., of counsel), for the State.

ST. PAUL, J. O'NIELL, C. J., dissents.

OPINION

ST. PAUL, J.

The defendant was convicted of the murder of one Miss Mildred Thomas, and sentenced to death. His appeal presents 31 formal bills of exception, a formal assignment of errors, and one informal suggestion (by brief) of alleged error patent on the face of the record.

I.

We quote sufficient from the per curiam of the trial judge to bill No. 10 to state the case and facilitate an understanding of some of the bills of exception hereinafter considered, to wit (transcript, 113):

"The testimony in this case showed that the deceased, Miss Mildred Thomas, a young lady 18 or 19 years old, attended with the accused the marriage of his sister by a country magistrate, the ceremony being some time between 9 [and 11] o'clock p. m. on Friday, May 27, 1927. He was next seen with the deceased between 5:30 and 6 o'clock a. m. next morning driving towards Monroe in a Ford touring car with the top off or down, with the deceased leaning either against him or the back of the seat with her head bent down. The accused had on no hat and no shirt, and, to use the expression of one witness, was in his B. V. D.'s from his waist up. He was seen at several places on the road to Monroe. He stopped near a well near a filling station about four miles west of Monroe. He lived at this place with his parents. He had no shirt when he came, but had on a shirt when he left going towards Monroe. Arriving in Monroe, the accused took the deceased to the residence of Dr. J. T. French at between 6:30 and 7 a. m. He stated to Dr. French that he had had an automobile wreck, and that the deceased had been in her then condition, which was unconscious, since between 10:30 and 11 o'clock of the previous night. Dr. French directed him to go to the Riverside Sanitarium. Dr. French followed him. The deceased died in the sanitarium shortly after she arrived; Dr. French stating that she died about ten minutes after he arrived. The deceased died of a broken skull. There was a lump low behind her left ear, where she had been injured, the fracture of the skull extending from this point upward and forward. The skin was not broken at this point. * * *"

The contention of the state was that the defendant, in committing a rape, or attempting a rape, had thrown the deceased to the ground, and that in falling she had struck her head on a small pine log. and fractured her skull.

The contention of the defendant was that on the way back, after the marriage of his sister, at a point some 30 or 40 miles from Monroe, a tire blew out, and the right front wheel of the automobile broke; that, when the wheel broke, the deceased jumped from the moving car, and fell to the road, this being some time after midnight; that the deceased arose, and claimed not to be hurt much; that she sat by him, and walked around whilst he was fixing the broken wheel; that it took him some time to fix the wheel and they then started again towards Monroe; that the deceased was conscious until they reached West Monroe, and became unconscious only just before he took her to Dr. French.

II.

On May 30th the grand jury was called in special session for June 6th. On June 8th it indicted defendant for murder, and on the same day Mr. Zach T. Heard was appointed to represent him. On June 11th the defendant was arraigned, with his counsel present, and pleaded not guilty, and the case was fixed for trial for July 5th. On the same day a venire of petit jurors was ordered drawn for service "during the week beginning on Monday July 4, 1927, said jurors to be summoned to appear for service on Tuesday July 5, 1927."

On Monday June 27th Messrs. Thomas C. Newton and Sterling M. Newton were appointed counsel to assist the defense.

III.

On Tuesday July 5th the case was called for trial before Hon. Percy Sandel, one of the judges of the Fourth judicial district court, "accused being present in person, and represented by Hons. Zach Heard, Thos. C. Newton, and Sterling M. Newton."

When the case was called, the attorneys for the defendant asked permission to withdraw the former plea of not guilty for the purpose of filing a motionto quash the venire of petit jurors. The court permitted the filing of the motion to quash, and agreed to pass upon the same, but would not permit the plea of not guilty to be withdrawn for that purpose. (Bill No. 26, first part.)

The court then ordered the jury called for the purpose of ascertaining who was present and hearing excuses; to which counsel for the defendant objected until their motion to quash had been disposed of, but were overruled. (Bill No. 25, first part.)

The motion to quash was then taken up, tried, and overruled. (Bill No. 26, second part. Bill No. 25, second part.)

Counsel for the defendant then moved for a continuance, which was refused. (Bill No. 24.)

IV.

At noon on July 5th, because of an agreement entered into between the state and the defense, Judge Sandel resigned the bench to Judge J. T. Shell, the other judge of said Fourth judicial district, in order that Judge Sandel might attend the funeral of his brother-in-law.

Whilst Judge Shell presided, the impaneling of the jury began, and ten jurors were accepted (including one H. H. Blanks, Jr., of whom more hereafter); and the defense exhausted its twelve peremptory challenges.

During the time Judge Shell presided eight bills of exception were taken, to wit, Nos. 11, 21, 9, 5, 7, 8, 22, 23, which will be considered in due course.

V.

About noon Wednesday July 6th Judge Shell retired, and Judge Sandel resumed the bench without objection. The jury was then completed and sworn, the indictment read, and the jury put in charge of the bailiff. The trial was taken up next morning, Thursday July 7th; and Judge Sandel presided continuously until the verdict was brought in.

We have given the course of the trial somewhat in detail, as some of the bills of exception will thereby be better understood.

At this point we may as well dispose of bill of exception No. 3 (transcript, 79) taken before Judge Sandel when the eleventh juror, W. H. Byrd, was accepted. The bill presents nothing for consideration; it consists of a statement that defendant, having exhausted his peremptory challenges, found himself forced to accept the juror, and statement by the court that the juror was not challenged in any way, whether for cause or otherwise.

VI.

Bill No. 26, first part (transcript, 208). The refusal of the trial judge to permit the withdrawal of the plea of not guilty in order to allow defendant to file a motion to quash the venire of petit jurors, if it was error at all, did not prejudice the defendant, since he was allowed to file his motion to quash, and that motion was heard and passed upon by the court.

Bill No. 25, first part (transcript, 199). It was permissible and proper for the trial judge to call the jury for the purpose of ascertaining who was present and hearing excuses before proceeding with the other business of the court. There was no reason whatever to keep jurors in court who were entitled to be discharged, and there was every reason to find out at once who was present in order that absentees might be brought in without delay, so that trials should not be retarded on account of their absence.

Bill No. 26, second part; bill No. 25, second part. The motion to quash the venire of petit jurors was properly overruled. (a) The court week during which they were called to serve was properly designated as the week beginning Monday July 4th, even though July 4th was a holiday; and the jurors were properly notified to appear on Tuesday July 5th, which was not a holiday. (b) Nor does it signify in the least that the jurors may have known that they were called to serve in this defendant's case, for, even if the court had but that one case before it, it was still necessary to call jurors to try it, but the trial judge says there were other criminal cases set for trial that week.

Bill No. 24 (transcript, 188). The matter of granting continuances rests in the sound discretion of the trial judge. In this case it was not abused. We have shown above that Mr. Heard was appointed four weeks (less one day) before the day fixed for the trial, and other counsel were appointed to assist him eight days before the trial. Mr. Heard had thoroughly familiarized himself with the case, and his own testimony is that, though he had been sick, yet his physicians thought he was sufficiently recovered to go through with the trial; and the fact is that he did take an active part in the conduct of the case. That the counsel appointed to assist him were not able to inform themselves as fully as he was does not change the fact that the accused was represented by counsel who had opportunity to, and did, inform himself fully about the case.

VII.

The eight bills taken before Judge Shell, during the impaneling of the jury, were as follows:

Bill No. 11 (transcript, 123). When the jury was about to be drawn, a box was brought into court marked "Sheriff's Box, Monday July 4, 1927," and defendant objected to its being opened, because there was nothing to identify it as the...