State v. Sears

• Decision Date: 20 March 1950
• Docket Number: No. 39435,39435
• Citation: 46 So.2d 34,217 La. 47
• Parties: STATE v. SEARS.
• Court: Louisiana Supreme Court

Page 34

46 So.2d 34

217 La. 47

STATE v. SEARS.

No. 39435.

Supreme Court of Louisiana.

March 20, 1950.

Rehearing Denied April 24, 1950.

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

Bolivar E. Kemp, Jr., Attorney General, M. E. Culligan, Asst. Attorney General, Herve Racivitch, District Attorney, Guy Johnson, 1st Asst. District Attorney, New Orleans, for appellee.

HAWTHORNE, Justice.

The defendant, Thomas Sears, has appealed to this court from his conviction and sentence to death for the murder of Edna Francois.

Defendant resided in the rear apartment at the premises 746 South Lopez Street in the City of New Orleans. The facts relied upon by the State are that, on the day of the homicide, Katherine Sears, the estranged wife of the defendant, went to his apartment; that shortly after her entrance a shot was heard; that Edna Francois, defendant's mother-in-law, who was at that time in a front apartment, screamed and rushed toward the defendant's apartment; that, as she was approaching or entering his apartment, the accused appeared and shot her several times, causing her death. A short time after the shooting occurred, law enforcement officers arrived at the partment occupied by the accused, found the bodies of his wife and his mother-in-law, and took him into custody. The defendant was charged with the murders in two separate indictments, was tried for the murder of his mother-in-law, Edna Francois, and was found guilty as charged.

During the course of the trial numerous bills of exception were reserved, but, since we have concluded that Bills of Exception Nos. 10 and 11, when considered together, have merit and defendant is therefore entitled to a new trial, we shall discuss only these two bills and the bills relating to the indictment, to the bill of particulars furnished by the State, to the motion to consolidate the trial of this case with the trial for the murder of the wife, and to the prayer for oyer, as the circumstances under which the other bills of exception were reserved may not arise at a second trial.

We have carefully examined the following bills of exception and find that they are without merit: Bill of Exception No. 1, which was taken to the ruling of the court that the answer of the State to a motion for a bill of particulars was good and sufficient; Bill of Exception No. 2, which was taken to the overruling of a motion to quash the indictment; Bill of Exception No. 3, which was taken to the refusal of the court to grant defendant's motion to consolidate the instant case with case No. 127,088 on the docket of the Criminal District Court for the Parish of Orleans, wherein defendant was charged with the murder of his wife; Bill of Exception No. 4, which was taken to the court's action on defendant's prayer for oyer of a confession made at the time of arrest.

Over strenuous objection of counsel for the defendant on the ground of irrelevancy, the State was permitted to offer in evidence an unlit half of a marijuana cigarette, and to introduce evidence that it was found by one of the officers on the dresser in the defendant's apartment, wrapped in a Spearmint gum wrapper. The finding of the cigarette was proved by the testimony of one of the officers at the scene, and the fact that it was a marijuana cigarette was established by the testimony of a city chemist, called for this purpose.

With reference to this testimony and the finding of the cigarette, the trial judge charged the jury as follows: 'The defendant is charged in this bill of indictment with having murdered one Edna Francois. The court permitted evidence to be presented showing * * * the finding of a one-half Marijuana Cigarette where the alleged homicide was committed, only as a part of the Res Gestae and no other. In otherwords the defendant is on trial only for the killing of Edna Francois and not for any other crime. The reason for the court permitting this evidence is that it is of the opinion that said evidence is part of the Res Gestae and may aid the jury in determining intent or motive.'

Evidence of the finding of the marijuana cigarette in the room of the defendant had a tendency to prove another crime, if, in fact, it did not actually do so--that is, the possession in the defendant of marijuana, which is made a crime under the laws of this state. The State makes no effort to connect the possession of this cigarette with the crime charged, that is, murder, but relies solely on the proposition that, since it was found at the scene of the crime by police officers a short time after the crime, it was relevant and admissible as part of the res gestae.

In 1 Wharton's Criminal Evidence (11th ed.), the rule applicable to the evidence introduced by the State in the instant case is stated as follows:

'If evidence of the commission of another crime constitutes a part of the res gestae, it is admissible.' Sec. 345, at p. 490.

'The well-settled rule that evidence of collateral crimes cannot be introduced on the trial of a homicide charge is subject to an exception where the collateral crime precedes, or is contemporaneous with, or a part of, the charge on trial and the circumstances surrounding the collateral crime are essential to prove or to explain the crime charged. * * *' Sec. 346, p. 491.

'When a collateral offense, or as it is sometimes called, an extraneous crime, forms part of the res gestae, evidence of it is admissible. As an isolated or disconnected fact, or where it is offered for the mere purpose of creating prejudice against or inviting sympathy for the accused, it is not relevant. When offered as an exception to the general rule of exclusion, it becomes a matter of substance with the charge on trial. * * * When two or more offenses are part of the same transaction, every element of the defendant's conduct in that transaction may be shown for the purpose of illustrating the motive or intent in committing the act which is the basis of the charge. It is essentially res gestae. In one case, the court admitted testimony of a so-called second offense because it was so closely connected with the offense charged in time and circumstance as to constitute one and the same offense. If a second person is murdered as a part of the same transaction, evidence of the condition of the body of the second person killed is admissible in a prosecution for the murder of the first person.' Sec. 347, pp. 496 et seq. (All italics ours.)

In 2 Warren on Homicide (Perm. ed.), this statement is made with reference to such evidence:

'The general rule is that proof of distinct and independent offenses is not...