State v. Swails
| Decision Date | 08 November 1954 |
| Docket Number | No. 41793,41793 |
| Citation | 76 So.2d 523,226 La. 441 |
| Parties | STATE of Louisiana v. Roy C. SWAILS. |
| Court | Louisiana Supreme Court |
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Edwin L. Blewer, Dist. Atty., Shreveport, for plaintiff-appellee.
Wellborn Jack, John E. Lawhon, James T. Jeter, Jack C. Wimbish, Shreveport, for defendant-appellant.
Appellant shot and killed Arlene Johnson Brown, a tenant in his apartment house in Shreveport, and was indicted for her murder. After his plea of present insanity and insanity at the time of the crime, the court appointed a sanity commission, which conducted an examination and reported that, in its opinion, appellant was presently (April 24, 1952) insane and had also been insane at the time of the commission of the offense. Following a hearing on the plea of present insanity, the court committed him to the East Louisiana State Hospital at Jackson. In October of 1952, the Superintendent of the hospital informed the judge that appellant's condition had improved to such an extent that he was able to understand the proceedings and assist in his defense and that, consequently, he should be returned to court for final disposition of the charges against him. After the court failed to act upon the recommendation of the hospital superintendent, his counsel applied here for relief and we instructed the judge to grant a hearing. Accordingly, the judge reopened the matter but, after hearing the evidence, ruled that, although appellant was able to understand the proceedings against him and assist in his defense, he was in a state of remission and, if released, might become a menace to society. It was therefore ordered that appellant be returned to the mental hospital. On appeal to this court, the decision was reversed and the case remanded for further proceedings. See State v. Swails, 223 La. 751, 66 So.2d 796.
Thereafter, appellant, who had generally pleaded not guilty and specially pleaded not guilty by reason of insanity, was tried, convicted and sentenced to death by electrocution. He is appealing from his conviction, relying on 38 of the 44 bills of exceptions taken by him as grounds for a reversal.
As customary in criminal trials wherein multitudinous bills of exceptions have been reserved, the record shows that many of the bills in this case are directed against a repetition of the same alleged error committed by the court at various stages of the proceeding. For this reason, counsel for appellant have grouped the bills into eight separate arguments. We shall therefore endeavor to follow this grouping as closely as practicable in considering the questions raised in the bills.
Bills Nos. 1-A, 2-A and 3-A were taken to the denial of appellant's motion for a change of venue. He averred that he could not secure a fair and impartial trial in Caddo Parish owing to the great publicity given to the case by the press, by radio, and by discussion among the people, all of which so redounded to his disadvantage that the general public was firmly convinced of his guilt. In support of this claim, appellant produced eight witnesses and various newspaper accounts of the homicide. Twenty-four witnesses testified for the State.
An examination of the evidence reveals that the judge did not abuse his discretion in denying a change of venue. 1 There was ample evidence to show that appellant could obtain a fair and impartial trial in the Parish. At no time had there been any public demonstration of hostility against him and almost two years had elapsed between the date of the killing and that of the trial. The newspaper coverage was not appreciably different from that ordinarily given to a comparable crime.
Bill No. 4-A was reserved to the court's refusal to require the entire voir dire examination of prospective jurors to be taken by the reporter at the State's expense, it being the contention of defense counsel that the questioning of jurors on their voir dire was necessary to protect appellant's rights under a renewed motion for a change of venue.
There is no merit in the bill. Under Article 500 of the Code of Criminal Procedure, LSA-R.S. 15:500, appellant was without right to have any evidence taken down at State expense, except that which was necessary as a basis for a bill of exceptions, and could not require the State to provide for the reporting of evidence appertaining to guilt or innocence. The motion for a change of venue, which had to be raised in advance of trial, had already been overruled. The voir dire examination of prospective jurors had nothing to do with venue but concerned solely the qualification of the jurors who were being selected for the trial of the case.
Bills of Exceptions Nos. 5-A, 6-A, 10-A, 11-A, 12-A, 13-A, 14-A, 15-A, 16-A, 43-A and 44-A, pertain to the judge's refusal to permit defense counsel to acquaint the jury with certain sections of the mental health law, particularly LSA-R.S. 28:52, 28:53, 28:54, 28:55, 28:59 and 28:96 which, counsel contended, would authorize the judge to commit appellant to a mental institution if he were found not guilty by reason of insanity at the time of the crime. To inculcate this idea in the mind of the jury, counsel attempted to read the above cited sections to the jurymen on their voir dire but were restrained from doing so when the judge sustained an objection of the district attorney. Later, however, after much argument and repeated efforts by counsel to acquaint the jury with the mental health law, the judge reversed his ruling and permitted them to read the cited sections to the prospective jurors. But now it is contended that the subsequent action of the judge only served to confuse the jury inasmuch as he refused to give certain specially requested charges regarding the mental health law, pertaining to the action that might be taken against appellant should he be found not guilty by reason of insanity.
We find no substance in any of these bills. It was the function of the jury to determine appellant's guilt or innocence on the basis of evidence applicable to the issues of the case. Appellant's main defense was insanity at the time of the commission of the offense, as to which the judge instructed the jury fully and correctly on the law, concisely distinguishing it from the plea of present insanity, which is an issue to be determined solely by the court.
The special charges submitted by appellant's counsel were properly refused, for they were not wholly correct and wholly pertinent to the case, as required by Article 390 of the Code of Criminal Procedure, LSA-R.S. 15:390. They were not pertinent because the disposition of appellant following a verdict of not guilty was not an issue in the case and they were not wholly correct because counsel did not include in the requested charges certain cognate provisions of the mental health law, to wit, LSA-R.S. 28:56, 28:98 and 28:171.
Moreover, it is difficult to see how appellant was injured by the original ruling anent the injection of the mental health law into the proceedings in view of the judge's reversal of his position, during the voir dire examination, which enabled counsel to inform the veniremen that appellant could be detained under that law should he be acquitted, and also to question them at length as to their attitude on the insanity plea. In this connection, it is to be noted that defense counsel must have been well satisfied with the jury as they did not exhaust all of appellant's peremptory challenges.
Bills of Exceptions 7-A and 9-A are addressed to the judge's refusal to allow defense counsel to ask prospective jurors whether they believed in psychiatry.
The ruling is correct. Article 357 of the Code of Criminal Procedure, LSA-R.S. 15:357, states that the purpose of a voir dire examination of a juror is to ascertain his qualification to serve in the trial of the case 'and the examination shall be limited to that purpose'. The questions propounded by counsel were not calculated to determine whether the jurors were biased against appellant but, rather, to ascertain their attitude toward two expert witnesses who were expected to testify in the case and, hence, such questions were objectionable. State v. Henry, 197 La. 999, 3 So.2d 104 and State v. Wideman, 218 La. 860, 51 So.2d 96.
In Bill No. 8-A it is alleged that the district attorney, in questioning a prospective juror, omitted the word 'int...
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