State v. Sears

• Decision Date: 05 November 1951
• Docket Number: No. 40317,40317
• Citation: 220 La. 103,55 So.2d 881
• Parties: STATE v. SEARS.
• Court: Louisiana Supreme Court

Page 881

55 So.2d 881

220 La. 103

STATE v. SEARS.

No. 40317.

Supreme Court of Louisiana.

Nov. 5, 1951.

Rehearing Denied Dec. 10, 1951.

G. Wray Gill, New Orleans, for defendant-appellant.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden, Dist. Atty., Peter J. Compagno, Asst. Dist. Atty., George J. Gulotta, Executive Asst. Dist. Atty., New Orleans, Racivitch, Johnson & Wegmann, New Orleans, of counsel, for the State.

McCALEB, Justice.

Appellant has been twice convicted and sentenced to death for the murder of his mother-in-law, Edna Francois. The first conviction was annulled on appeal to this Court and the case remanded for a new trial. State v. Sears, 217 La. 47, 46 So.2d 34. Having again been found guilty, he has prosecuted this appeal relying on 33 bills of exceptions reserved at the trial for a reversal of his conviction.

An examination of the bills discloses that many of them refer to the same alleged error of law and, therefore, need not be treated separately. Indeed, counsel for appellant has cumulated a number of the bills in his discussion of the case basing his argument on ten separate points. It therefore suffices to combine for consideration all bills covering the same or similar legal proposition endeavoring, as nearly as possible, to follow the grouping adopted by counsel. Initially, however, a brief statement of the facts is in order.

On the afternoon of March 17, 1948, Edna Francois went to premises in the City of New Orleans in which appellant occupied an apartment and asked him if her daughter, Catherine Sears (his estranged wife), could come to the apartment to get some clothes which she had left there. Upon obtaining his permission, Edna went to another apartment in the building and called her daughter over the telephone. Approximately 20 minutes later, Catherine arrived and, after holding a brief conversation with her mother, went to appellant's apartment to obtain her belongings. Within a short interval of time, a pistol shot was fired in the apartment and Edna ran through the hall in the direction from where it was heard. As she was in the hallway, appellant appeared at the door of his bedroom and fired, striking her and causing her to fall to her knees. While she was thus positioned, he fired several other shots which entered her body from the back. In short order, police arrived at the scene, covered the exits of the building and caused appellant to surrender. An investigation was immediately conducted which disclosed the body of Catherine outstretched in the bedroom and that of Edna in the hall. Appellant was then taken to Detective Headquarters where he was questioned by an Assistant District Attorney and made a written confession of the killings.

Bills Nos. 1, 29, 31 and 17 are founded upon the alleged failure of the trial judge to explain in his charge to the jury, or to permit defense counsel to explain while questioning the jurors on their voir dire examination the difference between murder and manslaughter and to point out that the essential distinction is the element of malice, which counsel contends is present in murder but absent in manslaughter.

The judge stated, in substance, in his charge to the jury that murder is defined by the Louisiana Criminal Code as the killing of a human being when the offender 'has a specific intent to kill or to inflict great bodily harm', Article 30; LSA-R.S. 14:30, whereas, manslaughter is the killing of a human being which would be but is not murder because 'the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection'. Article 31, Criminal Code; LSA-R.S. 14:31. And he refused appellant's request to instruct the jury that the absence of malice is the essential difference between murder and manslaughter, being of the opinion that, since the adoption of the Criminal Code, malice aforethought is no longer an element of murder.

The view of the trial judge is correct. Prior to the adoption of the Criminal Code, murder had not been defined by the Legislature. Under the jurisprudence, it was the same under our law as at common law. State v. Mullen, 14 La.Ann. 570 and State v. Robinson, 143 La. 543, 78 So. 933. Murder at common law is defined as 'the unlawful killing of a human being with malice aforethought, express or implied'. Clark and Marshall 'Crimes' 4th Ed. Sec. 236, page 287. However, the redactors of our Criminal Code, in defining murder, intentionally omitted 'malice aforethought' as an element, substituting in its place 'specific intent' for the reason stated in the comment contained in the footnote of Article 30 of the Criminal Code that: 'Rather than use this value and purely fictional phrase, (malice aforethought) relying upon past decisions for its interpretation, the Reporter has enumerated the situations where the homicide is to be considered as murder. These coincide very closely with the prior jurisprudence where the courts have been attempting to delimit and define the term 'malice aforethought." (Words in parenthesis ours).

The difference between murder and manslaughter appears clearly in the definitions set forth in Articles 30 and 31 of the Criminal Code and no further explanation is necessary to any one of ordinary intelligence. Article 31 simply states that manslaughter is a homicide which would be murder but for the factor that it is committed in sudden passion caused by reasonable provocation. The intent in manslaughter, like that in murder, is specific but the penalty for the crime is not as severe because of the mental and physical excitement of the actor, produced by adequate cause.

The contention of defense counsel that the absence of malice aforethought is the element distinguishing manslaughter from murder is based on common law conceptions. Voluntary manslaughter is defined at common law as an intentional homicide in sudden passion caused by reasonable provocation 'and not with malice aforethought'. Clark and Marshall 'Crimes' 4th Ed. Sec. 253, page 309; Wharton's Criminal Law 12th Ed. Vol. I, Sec. 425. But, since malice aforethought has been omitted as an element of murder under our statutory definition, it follows that its absence in manslaughter can no longer be regarded as the distinguishing feature of the crimes.

The statements relied on by counsel, which are found in the cases of State v. Harper, 205 La. 228, 17 So.2d 260 and State v. Adams, 210 La. 782, 28 So.2d 269, are merely quotations of the common law distinction between murder and voluntary manslaughter and are not authority for the contention that malice is the essential difference between the crimes as defined by the Louisiana Criminal Code.

Bills Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10 and 12, pertain to the claim that the judge erred in permitting the State, over timely objection, to adduce evidence concerning the killing of Catherine Sears which included an alleged gruesome photograph of her body taken at the scene of the crime. The judge states in his per curiam that he allowed the evidence because he considered it part of the res gestae.

The ruling is correct. The killing of appellant's wife and mother-in-law arose out of one affray and was a continuous transaction. The crimes being inseparable, evidence of the homicide of the wife constituted res gestae within the meaning of Article 447 of the Code of Criminal Procedure; LSA-RS 15:447, and therefore was admissible as a necessary incident or immediate concomitant of the offense for which appellant was on trial. Article 448, Code of Criminal Procedure, LSA-RS 15:448; State v. Mulholland, 16 La.Ann. 376; State v. Corcoran, 38 La.Ann. 949; State v. Anderson, 45 La.Ann. 651, 12 So. 737; State v. Donelon, 45 La.Ann. 744, 12 So. 922; State v. Desroches, 48 La.Ann. 428, 19 So. 250; State v. Blount, 124 La. 202, 50 So. 12; State v. Schmidt, 163 La. 512, 112 So. 400; State v. Leslie, 167 La. 967, 120 So. 614; State v. Comeaux, 171 La. 327, 131 So. 36 and State v. Sears, supra.

Defense counsel acknowledges the right of the State to prove the death of Catherine Sears but asserts that the evidence should have been limited to this fact alone and that, to allow the admission of detailed circumstances respecting her death, was highly prejudicial to appellant. We agree with counsel that the evidence was prejudicial; patently, all evidence of a heinous crime is not of benefit to the accused but that is not the issue before us. The question is whether the evidence was admissible, which we have affirmatively answered.

Nor do we find merit in counsel's point that the judge should not have received in evidence a photograph of the body of Catherine Sears taken at the scene and pictures of the bedroom in which the body was found. The basis of the complaint is that the pictures were gruesome and served only to prejudice the jury against appellant as they were unnecessary to the State's case. The short answer to this proposition is that there is nothing gruesome or revolting about the pictures. Hence, the ruling in State v. Morgan, 211 La. 572, 30 So.2d 434, on which counsel relies, is inapposite.

Bills Nos. 11, 18, 28 and 30 relate to the effect to be given to self-serving declarations or exculpatory statements contained in appellant's confession. It is maintained by counsel that the jury should have been instructed that, since the state had offered the confession in evidence, it was bound in law by all of its contents excepting those statements which it had disproved by other evidence.

Counsel is mistaken in his appreciation of the law. After a confession is received in evidence, it is a matter for the jury to determine the weight to be given it and this applies to all statements contained therein. In other words, it is a matter for the jury to consider exculpating statements and accept or reject them in the same manner as all other evidence in the...