State v. Simpson

• Decision Date: 07 November 1949
• Docket Number: No. 39328,39328
• Citation: 43 So.2d 585,216 La. 212
• Parties: STATE v. SIMPSON.
• Court: Louisiana Supreme Court

Page 585

43 So.2d 585

216 La. 212

STATE v. SIMPSON.

No. 39328.

Supreme Court of Louisiana.

Nov. 7, 1949.

Rehearing Denied Dec. 9, 1949.

G. Wray Gill, Lloyd C. Hoffmann, New Orleans, for defendant and appellant.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Herve Racivitch, Dist. Atty. Guy Johnson, First Asst. Dist. Atty., New Orleans, Edward A. Haggerty, Jr., Asst. Dist. Atty., New Orleans, Herve Racivitch, Jr., New Orleans, of counsel, for the State.

FRUGE, Justice.

The defendant, Dale Smith Simpson, who was tried for murder, convicted, and sentenced to be electrocuted, is appealing from the conviction and sentence.

During the course of the trial the defendant reserved fifty-three bills of exception. First we will take up the bills which have been briefed and argued on this appeal, discussing them singly or in groups as the dictates of clarity and convenience direct.

Bill of Exception No. 1 was reserved to the court's refusal to grant a continuance of file pleadings. On September 22, 1948, when counsel for the defendant were appointed, they were informed that they had until October 4, 1948, to withdraw the plea of not guilty previously entered and file further pleadings. On October 4, 1948, the time was extended to October 6, 1948, and on October 6, 1948, it was again extended to October 7, 1948. The ruling complained of was made on October 7. In the motion for a continuance counsel for the defendant asserted their belief that they would soon be able to locate witnesses and evidence attesting to the insanity of the accused, both present and as of the date of the alleged crime, and requested the court to postpone the arraignment of the defendant for a reasonable length of time during which they hoped to be able to produce these witnesses and with their support seek the appointment of a lunacy commission. The motion was accompanied by several exhibits in the form of letters and telegrams from various relatives of the defendant.

The motion and exhibits show no more than a hope that evidence of insanity would ever be produced, and, as a matter of fact, no such evidence was produced during the course of the trial. In his per curiam the trial judge states that he had anticipated this development and had taken pains to observe the defendant and question those who were in constant contact with defendant, regarding his sanity, and had concluded that the defendant was absolutely normal. The motion was directed to the sound discretion of the trial judge and we see no abuse of that discretion in the judge's refusal to grant the motion. Article 321, Code of Criminal Procedure.

Bill of Exception No. 2 complains of the ruling of the trial judge on defendant's motion for a bill of particulars. The only requested information which the bill of particulars did not furnish was that requested in paragraph III, (b) and (c) of defendant's motion, as follows:

'b. Whether or not the statement or alleged confession of your defendant or the statement or alleged confession of his co-defendant was placed before the grand jury for its consideration, and

'c. Such other memoranda and data, both written and verbal that went before the grand jury, that were connected directly or indirectly with the alleged statements or confessions of your defendant and his co-defendant.'

The proper function of a bill of particulars is to inform the accused in greater detail of the nature of the crime of which he is charged. Articles 235 and 288 of the Code of Criminal Procedure. State v. Davis, 208 La. 954, 966, 23 So.2d 801; State v. Varando, 208 La. 319, 380, 23 So.2d 106. That it may be used as a device for ascertaining the nature of the evidence produced at the hearing of the grand jury is certainly a novel proposition and one unsupported by authority. The ruling of the trial judge is correct.

Bill of Exception No. 3 is taken in connection with defendant's prayer for oyer. The language of the prayer for oyer is so vague and general that it is difficult to tell exactly what counsel expected the court to order produced. But from counsel's argument in support of this and other connected bills we take it that he entertains the hope that this court will extend the ruling laid down in State v. Dorsey, 207 La. 928, 22 So.2d 273, 285, to include all 'statements' of the accused, be they written or in the mind of a witness and be they in the nature of a confession or not; whether they are a statement by the accused or simply contained or referred to in a statement by a witness. In Dorsey's case this court held that the accused was entitled to a pre-trial view of a written confession alleged to have been made by the accused. However, anticipating the argument presented by counsel in the instant case the court said:

'It is not our intention to overrule the prior jurisprudence of this State, and particularly the various cases cited by counsel for the State, in each of which defendant was denied pre-trial inspection of written confessions of codefendants, written statements of witnesses, or police reports in the hands of a sheriff, police department, or district attorney, and we do not overrule these cases.'

In State v. Mattio, 212 La. 284, 31 So.2d 801, the court again specifically stated that the rule of the Dorsey Case applied only to the written statements of the accused himself. We hold that all that the defendant was entitled to receive in response to the prayer for oyer was the written confession of the defendant. Actually the court (as stated in its per curiam) in order to make certain that it complied with the rule laid down in Dorsey's case ordered the district attorney to furnish copies of (1) all statements made by defendant and taken down and transcribed and (2) all police reports that recited that defendant made statements (meaning we are informed in the per curiam, statements that were in the nature of admissions or confessions.) The district attorney complied, thereby placing the defendant in a more advantageous position than he was entitled to be and he could not have been prejudiced.

Bills of Exception Numbers 11, 19, 20, 21, 22, 23, and 25 will be taken up now, as they are interrelated with the bill just discussed. These bills represent the consistent objections of counsel to any reference by direct testimony or otherwise to any statements attributed to Simpson by Detective Tardo, who was an eye witness to the crime, other than the one statement which was disclosed in answer to the prayer for oyer. (In the answer to the prayer for oyer it was disclosed that Detective Tardo in his police report had quoted Simpson as saying 'Keep driving as if nothing happened. I just shot Nick.' This was properly included in the answer, in view of the judge's ruling, as being in the nature of an admission.) The sole argument in support of these bills is that all statements of the accused should have been disclosed in the answer to the prayer for oyer and that not having been disclosed they must be excluded from the case. Our ruling on Bill of Exception No. 3 disposes of this argument. None of the statements referred to were in the nature of a confession, and there was no reason for their being disclosed in answer to the prayer for oyer.

Bills of Exception Numbers 4 and 6 were reserved to the court's overruling counsel's motion to have various witnesses summoned in order to show that the defendant was held incommunicado from the time of his arrest until he was supposed to have confessed; thereby showing, we take it, that the grand jury received other than legal evidence. Counsel's avowed purpose in seeking this testimony was to perpetuate it in connection with the motion for a bill of particulars. As we have said, the motion for a bill of particulars was properly denied and these bills must fall with it.

Bill of Exception No. 5 was reserved to the trial judge's ruling on the motion to quash, and presents three questions for decision. First, was the trial judge correct in refusing to hold a hearing on the nature and legality of the evidence which went before the grand jury? This court has answered the question in the affirmative. State v. Dallao, 187 La. 392, 175 So. 4, and cases there cited. Article 213 of the Code of Criminal Procedure is no more than a direction to the grand jury that it must limit itself in its investigations to the consideration of legal evidence. That article may not be used as authority for forcing the trial judge into a review of the proceedings before the grand jury in which the evidence which was produced will be subjected to all of the multiple objections which have evolved for the protection of the defendant when he is actually being tried. Second, is the indictment which charged that Dale Smith Simpson and Harold L. Miller 'each' etc., fatally defective by reason of the use of the word 'each?' It simply charges that they each did the same things which are thereafter charged. The case is easily distinguished from State v. Pinsonat, 188 La. 334, 177 So. 67, cited by counsel in the motion to quash. In that case the fact charged against joint defendants was stated in the singular and the court very properly held that the indictment was fatally defective. It could not be determined to which accused he crime was to be attributed. Here the use of the word 'each' makes it clear that the fact charged applies to each defendant named. The third question is does an indictment charging the accused with the crime of murder charge him with a crime 'within legal intendment?' Inasmuch as the crime of murder has been described and denounced by the legislature, we must hold that he is so charged. There is no merit in the bill.

Bill of Exception No. 7 complains of the court's refusal to appoint a lunacy commission. The appointment of a lunacy commission rests in the discretion of the trial judge and we find no abuse of that discretion here. The exhibits introduced with this motion totally fail to...