State v. Ward

• Court: Louisiana Supreme Court
• Writing for the Court: HAWTHORNE
• Citation: State v. Ward, 167 So.2d 359, 246 La. 766 (La. 1964)
• Decision Date: 01 July 1964
• Docket Number: No. 47122,47122
• Parties: STATE of Louisiana v. Edward WARD, Charles Cage, William Chevalier, and Earl Davis.

Page 359

167 So.2d 359

246 La. 766

STATE of Louisiana v. Edward WARD, Charles Cage, William Chevalier, and Earl Davis.

No. 47122.

Supreme Court of Louisiana.

July 1, 1964.

Rehearing Denied Oct. 7, 1964.

Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendants-appellants.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., John Hunter, Sp. Asst. Atty. Gen., George T. Anderson, Dist. Atty., Ronald C. Martin, Asst. Dist. Atty., John Makar, Sp. Asst. Dist. Atty., for appellee.

HAWTHORNE, Justice.

Edward Ward, Charles Cage, William Chevalier, and Earl Davis, charged with the crime of murder, were jointly tried. Ward was found guilty as charged and sentenced to death, and the others were found guilty as charged without capital punishment and sentenced to imprisonment in the state penitentiary at hard labor for life. The errors complained of on this appeal are presented to us by means of bills of exception which were timely reserved and perfected.

The indictment charging these defendants with the murder of John Fisher was returned by the grand jury on March 5, 1963. On March 14 they were arraigned in open court. Each, represented by qualified and competent counsel of his choice, pleaded not guilty, and the case was fixed for trial for April 1. On the day the case was fixed for trial, and when the petit jury venire was present, counsel for the accused filed a motion to withdraw the pleas of not guilty in order to file certain motions. One of these was a motion to quash the indictment on the alleged ground that the district attorney and other unauthorized persons were present during the deliberations of the grand jury which returned the indictment against these defendants. The trial judge denied the motion to withdraw the pleas of not guilty as having been filed too late. In overruling the motion the judge stated:

'On the morning of the trial and before the trial started, defendants filed a motion to quash the bill of indictment. This motion was based on the ground that the District Attorney and other unauthorized persons were present in the Grand Jury room during its deliberations.

'To have heard this motion it would have required the taking of testimony, preceded by the summoning of witnesses, preparation on the part of both defendants and the State. Obviously, it could not have been disposed of prior to commencement of the trial on April 1, 1963.

'The court ruled that the defendants were dilatory in the filing of the motion; that the court would have permitted the defendant to have withdrawn their plea to the indictment and have heard the motion had the motion been filed timely; that the court was available to the defendants for an earlier filing and hearing at any time during the previous two weeks.'

Article 284 of the Code of Criminal Procedure provides that every objection to an indictment shall be taken by demurrer or motion to quash before arraignment, and hence counsel in the instant case in order to file his motion to quash sought first to withdraw the pleas of not guilty previously entered. Article 265 of the Code of Criminal Procedure provides that a defendant may at any time with the consent of the court withdraw his plea of not guilty and then move to quash the indictment. To permit the withdrawal of the plea of not guilty in order to file such a motion, however, is discretionary with the trial judge, and his ruling will not be disturbed unless an abuse of discretion is shown. State v. Dawson, 186 La. 900, 173 So. 524; State v. Verdin, 192 La. 275, 187 So. 666. The motion to withdraw the pleas in the instant case does not give any explanation of why the motion to quash was not timely filed, and under these circumstances we cannot say that the trial judge abused his discretion.

Even if he did abuse his discretion, however, it was not reversible error because defendants were later given an opportunity to prove the allegation forming the basis of their motion to quash. In their motion for a new trial they reiterated the allegation that the district attorney and other unauthorized persons were present in the grand jury room during the jury's deliberations. This motion was fixed for hearing, and the judge heard evidence on this allegation before overruling the motion.

Article 215 of the Code of Criminal Procedure provides that the district attorney as the legal adviser of the grand jury shall have free access to sessions of that body. This right of access, however, is limited by the provision of Article 19 of that Code that '* * * no district attorney or other person shall be present during the deliberations of the grand jury on their findings'. Article 507 of the Code states that every motion for a new trial must specify the ground upon which relief is sought, and that the proof must correspond with the allegations of the motion. In State v. Slack, 227 La. 598, 80 So.2d 89, this court after quoting that article said:

'* * * Conformably with this provision, it was held in State v. Washington, 169 La. 595, 125 So. 629 that if the allegations of a motion for a new trial are not supported by proof, it is properly overruled. See also State v. Martin, 151 La. 780, 92 So. 334.'

The question presented, therefore, is whether defendants have proved these allegations found in the motion. If so, the motion would have merit.

At the hearing nine members of the grand jury which returned the indictment testified, and it was stipulated that the testimony of the other three would be substantially the same as that given by one of the grand jurors who did testify. The district attorney also testified. The trial judge denied the motion, stating:

'After hearing the testimony, the court concluded there was no merit whatever to this ground urged for a new trial by defendants. The court found there were no unauthorized persons in the Grand Jury room during deliberations, and that the District Attorney was called for by the Grand Jury and admitted to the room for the purpose of further instructing the Grand Jury on the law, but that no deliberations by the Grand Jury were conducted during his presence.'

After reading the testimony taken on the hearing of the motion we conclude that defendants have utterly failed to prove the allegations of their motion, and that the trial judge was therefore correct. Counsel for the accused relies solely on the testimony of one of the grand jurors, but his testimony clearly shows that he was confused about the meaning of the term 'deliberations' as used in the statute.

During the trial of the case the State offered in evidence both oral and written statements or confessions made by all defendants. Counsel for defendants...