State v. Thomas

• Decision Date: 07 November 1960
• Docket Number: No. 45133,45133
• Citation: 240 La. 419,123 So.2d 872
• Parties: STATE of Louisiana v. Joseph D. THOMAS.
• Court: Louisiana Supreme Court

Page 872

123 So.2d 872

240 La. 419

STATE of Louisiana v. Joseph D. THOMAS.

No. 45133.

Supreme Court of Louisiana.

Nov. 7, 1960.

James I. McCain, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard A. Dowling, Dist. Atty., Abraham I. Kleinfeldt Asst. Dist. Atty., New Orleans, for appellee.

VIOSCA, Justice.

Defendant was indicted for aggravated rape and after a jury found him guilty without capital punishment was sentenced to life imprisonment. During the trial he reserved three bills of exception, two of which he relies upon on this appeal.

The indictment is in the short form specifically provided for in LSA-R.S. 15:235 (Art. 235 of the Code of Criminal Procedure) and charges that defendant 'committed aggravated rape upon one Barbara Ann Martin contrary to the form of the Statute of the State of Louisiana in such cases made and provided and against the peace and dignity of the same'.

Defendant filed a motion for a bill of particulars in which he alleges:

'That defendant is charged under Louisiana Revised Statutes 14:42 in the short form, with aggravated rape and desires the following information:

'1. What particular type of aggravated rape does the State propose to establish in this case;

'2. What was the exact hour of the alleged rape;

'3. What persons were present or allegedly present at the time of the alleged rape;

'4. What particular building, giving the Municipal number, or other place, definitely designated, did the alleged rape occur.'

The State answered his application for a bill of particulars as follows:

'1. The State is not required to answer this paragraph as this is a matter of proof to be adduced at the trial. The State is not required to elect on which portion of the statute it intends to proceed; the State elects to proceed on all parts of the statute.

'2. Answering Paragraph 2, the State advises that the time was approximately 3:00 A.M. on July 14, 1958.

'3. The answer to paragraph 3, is Joseph D. Thomas, Anthony Esteem and Charles Sims.

'4. The rape is alleged to have occurred in Shakespeare Park, in the vicinity of Washington Avenue and Freret Street, in the City of New Orleans.'

The defendant was satisfied with the answers to paragraphs 2, 3 and 4 but contended that the answer to paragraph 1 was insufficient and that the State was required to inform the defendant whether it was proceeding under Subsection 1, 2 or 3 of LSA-R.S. 14:42 which reads as follows:

'Aggravated rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:

'(1) Where the female resists the act to the utmost, but her resistance is overcome by force.

'(2) Where she is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

'(3) Where she is under the age of twelve years. Lack of knowledge of the female's age shall not be a defense.

'Whoever commits the crime of aggravated rape shall be punished by death.'

The trial court after hearing ruled that the answer was sufficient in law to which ruling and decision of the court the defendant reserved Bill of Exception No. 1.

Aggravated rape may be committed under Subsection 1 of LSA-R.S. 14:42, or under Subsection 2 or under Subsection 3 or under a combination of any two of said subsections or of all three. In State v. Jackson, 227 La. 642, 648, 80 So.2d 105, 107 we said:

'* * * Moreover the statute itself provides that aggravated rape may be committed under 'any one or more of the following circumstances'. This means that the circumstances may consist entirely of those set out in any one of the subsections or may be a combination of those set out in any two or in all three. * * *'

In that case in answer to a motion for a bill of particulars the State informed the accused that he was being prosecuted under the provisions of Subsections 1 and 2 of the statute. We held this sufficient. In the instant case in the answer to the application for a bill of particulars the State informed the defendant that 'the State elects to proceed on all parts of the statute'. This the State had a right to do, and the State cannot be ordered to elect when it charges the violation of more than one subsection of the statute. State v. Bickham, 239 La. 1094, 121 So.2d 207; State v. Rowan, 233 La. 284, 96 So.2d 569; State v. Jackson, supra; State v. Prince, 216 La. 989, 45 So.2d 366.

Defendant relies upon the following language in State v. Scott, 237 La. 71, 82, 110 So.2d 530, 535:

'R.S. 14:42 provides that the offense of aggravated rape is committed under any one or more of the following circumstances: (1) where the female's resistance is overcome by force; (2) where she is prevented from resisting by threats of great and immediate bodily harm accompanied by the apparent power of execution and (3) where she is under the age of 12 years. If the motion for the bill of particulars filed by appellant had specifically requested this information, there is no doubt that the judge would have been obliged to order the State to furnish it, in view of our decision in State v. Holmes, 223 La. 397, 65 So.2d 890, where it was held that, in a prosecution under the short form for a crime which may be committed in several designated ways, the accused is entitled, upon his request, to be informed of the specific way or ways relied on by the State'.

In that case the defendant did not specifically request the desired information in his motion for a bill of particulars but moved to quash the indictment because it did not contain that information. We upheld the indictment.

In this case the defendant asked for the desired information in his application for a bill of particulars and the State in its answer furnished the information. It is true that the State was in error in its contention in the answer to the motion for a bill of particulars that it was not required to answer the request of defendant that the State inform the defendant as to the particular type of aggravated rape it proposed to establish. However, the State by way of further answer did furnish the necessary information when it stated that it was proceeding under all parts of the statute, a procedure which we specifically upheld in State v. Jackson, supra.

Counsel for defendant charges that the District Attorney was not in good faith in alleging that the State was proceeding under all three subsections of the statute since the victim in this case was admittedly seventeen years of age. That complaint is answered by the trial judge in his per curiam in which he states 'before overruling the above motion on the basis that the reply of the District Attorney was sufficient, it is to be noted that it was specifically agreed and stated by counsel that under no circumstances would the State proceed under Section 3 of Revised Statute 14:42'.

In his brief counsel for defendant says: 'This statement and conclusion of the Trial Judge, with all due respect, is foreign to the record and contrary to the actual pleadings and minute entries of the clerk', and counsel argues that this Court should disregard the statement of the trial judge in his per curiam.

Our examination of the record fails to disclose any conflict between either the minutes of the court or the statements taken down by the clerk and the per curiam of the trial judge. The record is entirely silent on that question. The minutes merely show that there was a hearing on the sufficiency of the State's answer to the bill of particulars and a subsequent ruling by the court that the State's answer was sufficient. Under the circumstances we must accept the per curiam of the trial judge as conclusive.

Bill of Exception No. 1 is without merit.

Bill of Exception No. 2 was reserved to the denial of defendant's motion for a new trial. The first ground set forth in the motion relates to the ruling of the trial judge that the State's answer to the motion for a bill of particulars was sufficient. We have already disposed of this contention in our ruling on Bill of Exception No. 1.

The second ground set forth in the motion is that since the trial and verdict of the jury the victim Barbara Ann Martin made statements in the presence of Anthony Estem, Minette Estem and Clarence Johnson in which she declared that she was wrong in identifying defendant Thomas as the rapist herein.

For answer the State denied all of the allegations of the motion and annexed to its answer an affidavit by Barbara Ann Martin which states in part:

'I further state under oath and under penalty of perjury that since the trial and verdict of the jury in this case I did not make any statements, either in public or in private, to Clarence Johnson, Minette Estem or Anthony Estem, or any other person;

'that I did not at any time, either before or after the verdict of the jury, state that I was wrong in identifying Joseph E. Thomas as one of the persons who raped me; that I did not at any time before or since the verdict of the jury tell these people or anyone else that Joseph E. Thomas was not involved in or present at the time of the said offense because I was afraid of my husband; that my husband did not compel me to testify in this matter.'

The trial judge ordered a hearing on this motion and...