State v. Smith

• Decision Date: 28 June 1924
• Docket Number: 26684
• Citation: 156 La. 818,101 So. 209
• Court: Louisiana Supreme Court
• Parties: STATE v. SMITH et al

101 So. 209

156 La. 818

STATE v. SMITH et al

No. 26684

Supreme Court of Louisiana

June 28, 1924

Appeal from Sixth Judicial District Court, Parish of Ouachita; Fred M. Odom, Judge.

Jerome Smith and another were convicted of breaking and entering a dwelling house in the nighttime with intent to steal, and the former appeals.

Affirmed.

Grigsby & Parker, of Monroe, for appellant.

Percy Saint, Atty. Gen., and David I. Garrett, Dist. Atty., of Monroe (Percy T. Ogden, of Crowley, and M. M. Irwin, of New Orleans, of counsel), for the State.

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

OPINION

ST. PAUL, J.

Jerome Smith and Ike Watson were convicted of breaking and entering a dwelling house in the nighttime with intent to steal. Smith alone appeals. He brings up four bills of exception, as follows:

Bill of Exception No. 1.

He complains: That the trial judge allowed evidence to go to the jury showing that at the time of their arrest defendants had in their possession a package of butter and eggs apparently the property of some person residing near the scene of the alleged burglary; that they were not on trial for stealing said butter and eggs, and said testimony had no bearing on their guilt or innocence of the offense for which they were being tried.

In State v. Patza, 3 La.Ann. 512, this court said:

"That general rule is * * * that no evidence can be given of other felonies committed by the prisoner than that charged in the indictment. To this rule, however there are exceptions, one of which is when it becomes material to show the intent with which the act charged was done. Evidence may then be given of a distinct offense, not laid in the indictment" -- citing 2 Russ. on Crimes, pp. 694, 698. (Italics ours.)

In State v. Mulholland, 16 La.Ann. 376, the court said:

"Although the rule is that evidence of the commission of a felony distinct from the one charged in the indictment, is inadmissible, yet an exception lies when the purpose is to prove that the prisoner was actuated by malice" -- citing State v. Patza, 3 La.Ann. 512; State v. Rohfrischt, 12 La.Ann. 382. (Italics ours.)

In State v. Vines et al., 34 La.Ann. 1079, the court said:

"Proof of a different crime from the one charged, though generally objectionable, is admissible * * * when such proof is pertinent and necessary to show intent" -- citing State v. Mulholland, 16 La.Ann. 376 at 377; State v. Patza, 3 La.Ann. 512; State v. Rohfrischt, 12 La.Ann. 382; Wharton's Cr. Ev. § 262 et seq. (Italics ours.)

In State v. Charles Johnson (two cases), 38 La.Ann. 686, 688, the court, without citing any authority whatever and wholly ignoring the three decisions above quoted, held that the state was not entitled to show, in support of one charge of burglary accompanied by larceny, another (confessed) burglary also accompanied by larceny, at about the same time even for the purpose of showing intent. This case has been cited several times in support of the general rule that evidence of one offense is not admissible in a trial for another; but, as far as we can find, it has never been followed when the purpose of such evidence was to prove intent. See State v. Bates, 46 La.Ann. 849, 854, 15 So. 204; State v. High, 116 La. 79, 40 South. 538; State v. Holland, 120 La. 429, 45 So. 380, 14 N.Y. Anno. Cas. 692.

On the other hand, in State v. Williams, 111 La. 179, 35 So. 505, this court said:

"Whilst, as a general rule, a distinct crime, unconnected with the one charged in the indictment, cannot be given in evidence, exceptions to this rule arise when it becomes necessary to rebut the possible inference of accident, or to prove the intent with which the act charged was committed" -- citing A. & E. Encyc. of Law, vol. 11, p. 513; State v. Patza, 3 La.Ann. 512 at 513; State v. Rohfrischt, 12 La.Ann. 382; State v. Mulholland, 16 La.Ann. 376 at 377; State v. Thomas, 30 La.Ann. 600; State v. Porter, 45 La.Ann. 661, 12 So. 832.

In State v. Lemuel Johnson et al., 111 La. 935, 36 So. 30, it was held that:

"A distinct offense may also be proved, if necessary or pertinent, as showing intent in the matter of the crime charged" -- citing State v. Vines, 34 La.Ann. 1079; Whart. Cr. Ev. 262 et seq.; Bish. Cr. Ev. § 1126.

This rule has since been followed uniformly. See State v. Robinson, 112 La. 939, 36 So. 811; State v. Savant, 115 La. 226, 38 So. 974; State v. Jones, 145 La. 339, 82 So. 362.

In State v. Morgan et al., 129 La. 154, 55 So. 747, evidence was admitted of other burglaries committed about the same time as the burglary for which the defendant was being tried; and the court quoted the extract above given from State v. Williams, 111 La. 179, 35 So. 505.

We think these cases state the law correctly; and we adhere to them. The evidence was properly admitted for the purpose of showing the intent with which defendants broke and entered the dwelling; also for the purpose of showing their presence in the neighborhood about the time the burglary was committed. State v. Lemuel Johnson et al., 111 La. 935, 36 So. 30.

Bill of Exception No. 2.

Appellant complains of the admission in evidence of a confession made by his codefendant Ike Watson, on the ground that same was not voluntary but induced by violence, threats, and other ill treatment; that said Watson was not cautioned beforehand that said confession could be used against him.

The trial judge says that the confession was made some time after the alleged threats, violence, and ill treatment, and to one who had no connection whatever therewith; that before admitting the confession he was satisfied that it was freely and voluntarily given. The confession was clearly admissible (State v. Rini, 151 La. 163, 170, 91 So. 664); and we know of no law in this state which requires that an accused be warned that his statements may be used against him.

But in any event, the presumption is that the trial judge instructed the jury that such confession was not evidence against this appellant, or would have done so, if requested thereto by his counsel; and we will not assume that the able counsel for appellant failed to ask for all such instructions and charges as the interest of their client demanded.

Bill of Exception No. 3.

Appellant complains that the jury was allowed to separate after receiving the judge's charge, and when about to retire for the purpose of considering their verdict. The evidence shows that the separation was momentary and accidental and afforded not the least...