State v. Taylor

• Decision Date: 30 November 1931
• Docket Number: 31369
• Citation: 139 So. 463,173 La. 1010
• Court: Louisiana Supreme Court
• Parties: STATE v. TAYLOR et al

139 So. 463

173 La. 1010

STATE v. TAYLOR et al

No. 31369

Supreme Court of Louisiana

November 30, 1931

Rehearing Denied February 1, 1932

Appeal from Criminal District Court, Parish of Orleans; A. D Henriques, Judge.

Herman Taylor and others were convicted of murder, and they appeal.

Affirmed.

D. A Neuhauser and J. J. Brown, both of New Orleans, for appellants Taylor and Rylich.

M. C. Scharff, Edwin I. Mahoney, and Gaston Rose, all of New Orleans, for appellant O'Day.

Chandler C. Luzenberg, Sr., and A. P. Tureaud, both of New Orleans, for appellant Jacks.

Percy Saint, Atty. Gen., E. R. Schowalter, Eugene Stanley, Dist. Atty., and J. Bernard Cocke, Asst. Dist. Atty., all of New Orleans, for the State.

OPINION

ROGERS, J.

Herman Taylor, Donald Rylich, George O'Day, and Ito Jacks, or Jacques, were convicted of the murder of Raymond Rizzo, and, from the conviction and sentence of death imposed thereunder appeal to this court.

There appears to be no serious dispute as to the facts established by the record, although appellants contend that some of these facts were proved by illegal evidence, admitted over their objections, and we think it will be helpful to our discussion of the issues presented by the appeal to briefly set forth these facts. They are as follows, viz.:

Ito Jacks, or Jacques, a New Orleans negro, then living in Chicago, invited the defendants Taylor, Rylich, and O'Day to accompany him to New Orleans. The purpose of the intended visit was to commit a robbery. On Wednesday, November 19, 1930, the defendants, accompanied by the mistress of Taylor, arrived in New Orleans in a stolen automobile. Jacks placed his companions, who were unfamiliar with New Orleans, in the home of Daisy Banks, a negro woman whom he knew. This was at No. 1442 St. Claude street. On Saturday night, November 22, 1930, Jacks borrowed an automobile from a friend for the purpose of robbing a bank. All the defendants, except Jacks, who gave his pistol to O'Day, armed themselves, and were driven in the automobile by Jacks, who was familiar with local conditions, to the corner of Iberville and Rocheblave streets, where the Rocheblave Market Branch of the Canal Bank & Trust Company is situated. After driving around the block, it was agreed among the defendants that Jacks was to continue to drive the automobile, Rylich was to take care of the police officer, who in full uniform was standing in front of the market across the street from the bank, while Taylor and O'Day were to enter the bank and rob it. Jacks parked the automobile on Iberville street about fifty feet from the bank. Rylich left the car and approached the police officer who was talking to an aged citizen. Taylor and O'Day entered the bank. Rylich walked up to the police officer and shot him down. A citizen picked up the policeman's pistol and fired at Rylich, who ran towards the automobile driven by Jacks. Rylich returned the fire of the citizen as he retreated. While this was going on, Taylor and O'Day were inside the bank covering the bank's employees with their pistols and demanding the bank's money. Taylor fired a shot at the manager of the bank, narrowly missing him. Jacks hearing the shots started the automobile, and Rylich running towards the moving car jumped in. Before Taylor and O'Day came out of the bank, Jacks and Rylich had left the scene, eventually arriving at the premises No. 1442 St. Claude street. Taylor and O'Day ran from the bank, Taylor carrying its money in a brief case, firing as they ran at citizens, who had been attracted by the firing and who pursued them. The fugitives ran several blocks from the bank exchanging shots with citizens and police officers. During the pistol battle, Rizzo, a citizen who had joined in the pursuit, was fatally shot, and a policeman named Wilson was severely wounded. Taylor and O'Day jumped a fence pursued by police officers, and Taylor was caught in a yard with his empty pistol in his possession. O'Day escaped from the scene. Just before they jumped the fence, Taylor shot Rizzo, who died later as a result of the wound. After O'Day had effected his escape, he returned to the premises No. 1442 St. Claude street, where he met Rylich and Jacks. Rylich and Jacks wanted a division of the bank's money O'Day had obtained from Taylor during their flight, but O'Day refused to make any division until Taylor was present. A few moments later the police arrived and arrested Rylich, O'Day, and Jacks. A considerable sum of the bank's money was found in a yard, where Rylich, to whom it had been passed by O'Day as they were attempting to escape from the police, had dropped it. When Taylor was arrested, nearly $ 500 of the bank's money was also found on his person.

The transcript contains twenty-seven bills of exception. Four bills were reserved on behalf of Taylor; eight bills were reserved on behalf of Rylich; six bills were reserved on behalf of O'Day; and nine bills were reserved on behalf of Jacks. Each of the defendants filed motions for a new trial and in arrest of judgment. And each of them also filed an assignment of errors in this court.

In most instances the same legal points were reserved by all the defendants, so that it will be unnecessary to consider each bill of exception separately. All the bills, taken as a whole, present eight distinct questions of law. Those bills which involve the same legal points will be grouped and discussed as a whole under such grouping without reference to the particular bills.

1. All the bills of exception numbered 1 reserved by each defendant are identical and refer to the overruling of their pleas to the jurisdiction of section C of the criminal district court for the parish of Orleans.

Defendants' pleas allege, in substance, that their arraignment, trial, conviction, and sentence in section C of the criminal district court for the parish of Orleans was illegal and a denial to them of due process of law, in violation of section 2, art. 1, of the State Constitution, and the Fourteenth Amendment of the Federal Constitution, for the reason that the indictment on which they were arraigned, tried, convicted, and sentenced was not allotted as made mandatory by section 86 of article 7 of the Constitution of Louisiana, section 9 of Act No. 114 of 1921 (Ex. Sess.) and by rule 6 of the Rules of the Criminal District court.

On the trial of the pleas, the following facts were established, viz.:

The indictment on which defendants are prosecuted charges that the murder was committed on November 22, 1930. On November 25, 1930, an affidavit was filed in the criminal district court, charging the four defendants with the shooting of Officer Alberts with intent to murder on November 22, 1930. This affidavit was given the docket No. 56706, and was allotted on November 26, 1930, to section A of the criminal district court. An information was filed on this affidavit in section A of the criminal district court on December 11, 1930, and is still pending therein.

On November 25, 1930, an affidavit was also filed in the criminal district court charging the four defendants with the robbery of the bank on November 22, 1930. This affidavit was given the docket No. 56707, and was allotted on November 26, 1930, to section C of the criminal district court.

On December 4, 1930, the grand jury returned an indictment against the four defendants. This indictment contained two counts. The first count charged the defendants with the murder of Raymond Rizzo on November 22, 1930, and the second count charged the defendants with the robbery of the bank on the same date. This indictment was not allotted, but was given the No. 56707, the number of the affidavit for robbery, and was placed in section C of the criminal district court. The defendants were duly arraigned on the indictment, and pleaded not guilty. Later the defendant Ito Jacks withdrew his plea and moved to quash the indictment, on the ground that article 218 of the Code of Criminal Procedure, under which the indictment had been drawn, was unconstitutional. The motion was sustained by the trial judge, and on appeal to this court his judgment was affirmed. See State v. Jacques, 171 La. 994, 132 So. 657.

After the judgment of this court became final, the grand jury reindicted the four defendants for the murder of Rizzo. This indictment was returned on February 19, 1931, given the docket No. 58067, and assigned but not allotted to section C of the criminal district court.

On February 19, 1930, the grand jury also reindicted the four defendants for the robbery of the bank. This indictment was given the docket No. 58068, and was also assigned but not allotted to section C of the criminal district court.

Section 86 of article 7 of the Constitution of 1921 provides that all prosecutions instituted in the criminal district court for the parish of Orleans shall be equally allotted by classes among the five judges of the court, and that each judge, or his successor, shall have exclusive control over any case allotted to him from its inception to its final disposition. The constitutional article authorizes the judges of the criminal district court to provide by rule for the exercise of jurisdiction by any judge over any case previously allotted and also empowers the judges of said court to adopt all necessary rules not in conflict with law regulating the order of and the proceedings in the trial of all cases in said court.

Act No 114 of 1921 (Ex. Sess.), was adopted to organize the criminal district court as established by the Constitution of 1921. And section 9 of the act provides that all cases pending in the old court, transferred from the city criminal courts and subsequently filed shall be publicly and equally allotted by classes among the judges of...