State v. Solomon

• Decision Date: 15 December 1952
• Docket Number: No. 41035,41035
• Citation: 62 So.2d 481,222 La. 269
• Court: Louisiana Supreme Court
• Parties: STATE v. SOLOMON.

Page 481

62 So.2d 481

222 La. 269

STATE v. SOLOMON.

No. 41035.

Supreme Court of Louisiana.

Dec. 15, 1952.

Rehearing Denied Jan. 12, 1953.

Edgar Corey, New Orleans, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden, Dist. Atty., James P. Screen, Asst. Dist. Atty., and George J. Gulotta, Executive Asst. Dist. Atty., New Orleans, for appellee.

McCALEB, Justice.

John Solomon, a Negro, having been convicted of the murder of William Street, Sr., a white man, and sentenced to death for the crime, prosecutes this appeal. During his trial he reserved 20 bills of exceptions. Of these, he has abandoned Bills Nos. 1, 2, 4, 5, 6, 13, 15, 16, 19 and 20. He is relying on the others for a reversal of his conviction. The facts of the case, insofar as pertinent to a consideration of the bills, are as follows:

Street, the decedent, was Chief Engineer and appellant the Fireman on the Tugboat 'Robert W. Wilmot' which operates in the Mississippi River at New Orleans and vicinity. On the evening of January 5th, 1951, the boat docked at the Bisso Walnut Street landing and all members of the crew disembarked. Later that night the decedent returned to the boat, went to his cabin and retired. While he was sleeping, appellant entered the cabin armed with a piece of iron with which he assaulted decedent by striking him on the head until he was unconscious. Immediately after the battery, appellant fetched a sea bag or sack, stuffed the body therein, weighted it with a large iron shackle and cast it overboard into the river where the depth of the water is about 60 feet. The motive for the murder was revenge (appellant stated in one of his confessions that decedent treated him badly) and robbery (he extracted $50 in currency and a pistol from his victim at the time of the killing).

As soon as the disappearance of decedent was discovered, an intensive investigation of his whereabouts was made. Appellant was taken into custody on January 6th, 1951 and questioned about the crime. On January 10th, while still under detention, appellant telephoned his landlady, requested that she contract his mother for help and advised her that he had some money in a cement bag hidden in the shed in the rear of her house. The landlady went to the shed as directed by appellant and found the bag described by him containing some cement, the pistol and the $50 in currency which he had taken from the person of his victim. She immediately communicated this information to the police, who in turn advised appellant that they had knowledge of these facts. Upon being confronted with this evidence, appellant confessed to the murder but falsely stated that he had poured hot oil on the decedent and put the body aboard a railroad gondola. Evidently, this misinformation was given to throw the police off the track in their search for the body. At any rate, appellant was taken to the scene by the police where he reacted the crime and, on that occasion, imparted the correct information that he had thrown Street, who was alive and groaning at the time, into the river. In short order, a diver was brought to the scene and the doby recovered. On the next day, appellant gave a second and more detailed confession containing all of the true facts.

Prior to trial, the judge, at the request of defense counsel, appointed a lunacy commission to determine the sanity of appellant. This commission, composed of the Coroner and Dr. C. Grenes Cole, reported to the judge that, in their opinion, appellant was sane and, at the hearing, Dr. N. J. Chetta, the coroner, testified accordingly. There being no evidence offered to contradict the report of the Commission and the testimony of Dr. Chetta, the judge held appellant to be sane. Whereupon, defense counsel reserved Bill of Exceptions No. 3.

Counsel contends that it was error for the trial judge to rule that appellant was sane in the absence of testimony in open court from Dr. Cole, the other member of the Lunacy Commission, and that the failure of Dr. Cole to give evidence deprived appellant of a right guaranteed to him by Article 267 of the Code of Criminal Procedure, LSA-R.S. 15:267.

There is no substance in the bill. Article 267, which provides that the Court may appoint two disinterested physicians to examine the defendant and to testify at the hearing, does not contemplate or render it essential that the members of the Lunacy Commission testify at the hearing. It is only when the findings of the physicians are questioned, or when the defendant or his counsel request that they be present, that it is necessary that they be called to give oral evidence in corroboration of their written report to the judge. In this case, although counsel declares in his brief that the Court refused to call Dr. Cole, we find nothing in the record to support the charge. On the contrary, an examination of the proceedings conducted at the hearing, which are made part of the bill of exceptions, shows that the only objection made by counsel was to the final ruling of the judge that appellant was sane; he at no time requested that he be permitted to examine Dr. Cole. ¹

Bills Nos. 7, 9 and 10 have reference to the alleged error of the judge in admitting in evidence, over timely objection, three photographs of the body of the deceased. Counsel maintains that these photographs were gruesome and, being wholly unnecessary to the state's case, they were objectionable as they served only to prejudice the jury against appellant. The case of State v. Morgan, 211 La. 572, 30 So.2d 434, is cited as authority for the contention.

We find no merit in the bills. In the first place, an examination of the three photographs discloses that two of them cannot be regarded as gruesome or revolting. They merely depict the sack containing the body of Street after it was recovered from the bottom of the river. The body, except for the feet (which protrude), is completely covered by the canvas sack. Accordingly, as to these photographs, the asserted premise for denial of their admission--gruesomeness--does not exist.

The other photograph is that of the face and head of the dead man showing his gagged mouth and the gaping head wounds inflicted by appellant. It is, of course, inelegant but, after all, all murders, and especially those of the violent type, are revolting to the senses. Indeed, we feel certain that the members of the jury, after hearing the opening statement of the district attorney, were fully prepared and expected to hear and see things of an unpleasant nature. And we daresay that their view of the wounded features of the dead man had no appreciable effect upon them--surely, no more than hearing a recitation of the facts of appellant's shocking misdeed.

The case of State v. Morgan, while pertinent, does not justify maintenance of appellant's position here. In that matter, a ghastly picture of the female victim's body, accentuated in its cadaverous appearance by indentations of the flesh made by iron bars on which it had been placed by third persons after the murder, was offered in evidence. A majority of the Court found the picture to be inadmissible because its introduction was wholly unnecessary to the state's case. There, the ghastliness of the picture was so pronounced and the circumstances surrounding its submission in evidence of such an exceptional nature, that the court was able to draw the conclusion that it was offered solely for the purpose of prejudicing the jury against the defendant.

Neither the photograph nor the circumstances under which it was offered in this matter are on a parity with the Morgan case. The picture was tendered in connection with the testimony of Dr. Wallace Clark after it had been identified by him as that of the person upon whom he performed the autopsy. And, when it was offered, defense counsel did not at first object on the ground...