State v. Skinner

• Decision Date: 05 June 1967
• Docket Number: No. 48445,48445
• Citation: State v. Skinner, 251 La. 300, 204 So.2d 370 (La. 1967)
• Parties: STATE of Louisiana v. William SKINNER, August R. Gueldner and Alton J. Charbonnet.
• Court: Louisiana Supreme Court

Page 370

204 So.2d 370

251 La. 300

STATE of Louisiana v.William SKINNER, August R. Gueldner and Alton J. Charbonnet.

No. 48445.

Supreme Court of Louisiana.

June 5, 1967.

On Rehearing Nov. 6, 1967.

Rehearing Denied Dec. 11, 1967.

Robert S. Link, Jr., G. Wray Gill, Sr., George M. Leppert, New Orleans, for appellants.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

HAMITER, Justice.

William Skinner, August R. Gueldner and Alton J. Charbonnet were jointly charged in a bill of information, in two counts, with the illegal possession and sale of a narcotic drug (marijuana) on May 21, 1965.Following a trial before a jury of twelve they were found guilty as charged on both counts.Thereafter, each was sentenced to a lengthy term at hard labor in the state penitentiary.

Thirty-five bills of exceptions reserved during the course of the proceedings were perfected.However, in this courtdefendants rely on only fifteen of them, some of which involve the same issues.

One of the bills principally relied on, and which we think is meritorious, is that taken to the overruling of defendants' objection to the trial judge's general charge to the jury.It is numbered 29.

The charge contained, as the state concedes, a full statement relative to the law of conspiracy.With reference to this subject the judge observed:

'CONSPIRACY

'I charge you, gentlemen of the Jury, that a criminal conspiracy is defined to be a combination or agreement between two or more persons to do a criminal or unlawful act, or to do a lawful act by criminal or unlawful means.It has been said that a criminal conspiracy is a partnership in criminal purposes.

'The term conspiracy imports an agreement, but the agreement need not be a formal one.It is not necessary, to constitute a conspiracy that two or more persons should meet together, and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly, by words, or in writing, state what the unlawful scheme is to be, and the details of the plan, or means, by which the unlawful combination is to be made effective.It is sufficient if two or more persons, in any manner, or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlawful design.

'Conspiracies to commit crime can be established as well by circumstantial evidence as by direct evidence.

'The weight and sufficiency of the evidence to prove a criminal conspiracy is a matter for the jury, and so is the existence of the conspiracy.

'A conspiracy may, and generally must, be proved by circumstantial evidence, and if the circumstances tend to prove it, it is for the jury to determine whether they are consistent with the reasonable hypotheses of innocence.It is not necessary to sustain proof of a conspiracy to show that the parties made and actually agreed jointly to undertake the perpetration of a criminal act; that fact may be proved by circumstantial evidence sufficient to satisfy the jury of its existence.

'No person can be held guilty unless the act is either actually or constructively his; and it cannot be his, in either sense, unless committed by his own hand or by someone acting in concert with him, or in furtherance of a common object or purpose, as distinguished from someone acting independently or in opposition to him.

'The rule for criminal responsibility for acts of others done in prosecution of an unlawful object is subject to the limitation that the particular act of one of a party, for which the associates and confederates are to be held liable, must have been shown to have been done for the furtherance, or in the prosecution of, the common object and design for which they are combined together.There can be no criminal responsibility on the part of a conspirator resulting from something not fairly within the common enterprise.

'When two or more persons enter upon a common enterprise or adventure which contemplates the commission of a criminal offense, each is a conspirator, and his criminal responsibility extends not alone to the enterprise, adventure or encounter in which the conspirators are engaged but takes in the proximate natural and logical consequences of such adventure.

'When a conspiracy is entered into to do an unlawful act, all persons engaged therein are responsible for all that is done in pursuance thereof by any of their conspirators, until the object for which the conspiracy was entered into is fully accomplished.

'This responsibility is not confined to the accomplishment of the common design for which the conspiracy was entered into, but it extends to, and includes, callateral acts and incidental and growing out of the common design.

'It is for you to determine, gentlemen, as a matter of fact, from all of the evidence submitted to you, whether or not a conspiracy has been established, beyond a reasonable doubt, and that the defendants on trial were engaged in the said conspiracy.

'Unless you are satisfied that a conspiracy has been established I charge you that the acts and declarations of one of the parties to the alleged conspiracy do not bind the other.'(Italics ours.)

In his per curiam to billNo. 29 the judge, in justifying his observations, notes only that 'The defendants did not point out wherein the above charges given to the jury was not the law and the Court is at a loss to understand why the defendants objected thereto.'

However, such bill, which contains the pertinent portion of the transcript, shows that following the charge defense counsel objected thusly: 'I respectfully object to Your Honor's charge on conspiracy, Both as to its tenor and applicability in this case.'

This language was clearly sufficient to put the court on notice that the objection was made to the relevancy of the charge on conspiracy, the defendants having been accused of committing specific illegal acts and not with A conspiracy to commit them.

In State v. Gunter et al., 208 La. 694, 23 So.2d 305, one of the three accused charged jointly with simple kidnapping had pleaded guilty and was a witness for the state.On the trial of the others, one had requested special charges on the law of conspiracy which recited: "I charge you, gentlemen of the jury, that mere cognizance of fraudulent or illegal action does not constitute a conspiracy, but there must be shown active participation by the parties charged.

"That when the common enterprise is abandoned by one of the conspirators, that no other conspirator by his acts or actions is permitted to affect the others.

"That in order for the acts and declarations of a conspirator to be admissible against a co-conspirator, the State must prove that the conspiracy is formed or existed and that the accused against whom it is sought to employ such evidence was connected with such conspiracy and crime charged.

"That the admissibility of the acts and declarations of the co-conspirators against other members of the conspiracy is limited to those acts and declarations which are pursuant to and in furtherance of the unlawful combination or crime charged."

The trial judge refused to so charge.And on appeal to this court, following conviction, we observed: 'Under Article 26 of the Criminal Code, conspiracy is a separate and distinct offense from the completed crime.So much is this the case that a conviction for conspiracy will not bar a conviction for the completed crime and vice versa.

'As stated by the judge in his per curiam, under Article 24 of the Criminal Code, all persons concerned in the commission of a crime are regarded as principals.The defendants in this case were jointly charged with the offense of simply kidnapping under Article 45 of the Criminal Code.They were charged as principals and not as conspirators.* * *

'The judge gave his charge to the jury in writing, but he did not give to the jury the special charges requested by the defendant.The judge assigns as his reason for refusing to give the special charges that they were covered in part by his general charge And were otherwise not applicable to the facts in the case.His ruling was correct.Since the defendants were not charged and prosecuted for conspiring to commit the offense of simple kidnapping, but were charged and prosecuted for the basic offense of simple kidnapping, the instructions requested by defendant relative to conspiracy were not applicable to the case. * * * '(Italics ours)

Also pertinent here is State v. Fletcher, 236 La. 40, 106 So.2d 709 in which we said: 'The request to include a statement concerning the law of conspiracy in the general charge Was likewise properly denied as being irrelevant.Appellant was charged with the substantive offense of possessing narcotics and not with the separate and distinct crime of a conspiracy to passess them, which is composed of different elements.'(Italics ours)

In its original brief, and in several supplemental briefs filed following oral argument of the case, the state has cited (in support of its contention that the detailed charge on the substantive law of conspiracy was proper) the following cases: State v. Gebbia et al., 121 La. 1083, 47 So. 32, State v. Brasseaux, 163 La. 686, 112 So. 650, State v. Robichaux, 165 La. 497, 115 So. 728, State v. Taylor, 173 La. 1010, 139 So. 463, State v. Terrell, 175 La. 758, 144 So. 488, State v. Gunter, 180 La. 145, 156 So. 203, andState v. Melerine, 236 La. 929, 109 So.2d 471.

We note initially that all of these decisions except State v. Melerine, supra, were rendered prior to the last Gunter and the Fletcher cases heretofore discussed, the latter two being the latest expressions of this court specifically on the subject.

Moreover, all of the decisions cited by the state, except the Terrell and Taylor cases, supra, related only to the admissibility and probative effect of hearsay evidence as between...