State v. Washington

• Decision Date: 26 March 1945
• Docket Number: 37739.
• Citation: 207 La. 849,22 So.2d 193
• Court: Louisiana Supreme Court
• Parties: STATE v. WASHINGTON.

22 So.2d 193

207 La. 849

STATE v. WASHINGTON.

No. 37739.

Supreme Court of Louisiana

March 26, 1945

Rehearing Denied April 30, 1945.

Appeal from Fourth Judicial District Court, Parish of Morehouse; Frank W. Hawthorne, Judge.

Geo Wesley Smith, of Monroe, for defendant and appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst Atty. Gen., and Geo. W. Lester Dist. Atty., and James H. Dormon, Asst Dist. Atty., both of Monroe, for plaintiff and appellee.

HAMITER Justice.

Defendant was indicted and tried in Morehouse Parish for the murder of Dave White, a member of the Police Department of the City of Bastrop. Following the return of the jury's verdict of guilty as charged, the court sentenced him to suffer the penalty of death in the manner and form provided by law. He is appealing from the conviction and sentence.

The undisputed facts appear to be that shortly before six o'clock of the morning of August 21, 1944, decedent, Dave White, in response to a telephone call, went to the home of the accused, in the City of Bastrop, Morehouse Parish, and arrested him. While the two were in an automobile traveling to the municipal police station, they met one Ernest Neighbors, a street maintenance employee of such city, who was induced by the decedent to join them. After arriving at their destination, and within the office of the Chief of Police, decedent and Neighbors attempted to search the prisoner. The latter resisted their efforts, and a violent scuffle ensued, resulting among other things in the rendering unconscious for a few moments of Neighbors. On his regaining consciousness he noticed that decedent was lying on the floor, in a dazed or semi-conscious condition, and that the prisoner had fled, carrying away decedent's 44-calibre Smith & Wesson revolver.

Medical and other assistance was sought immediately by telephone, but the police officer died before it arrived. The death, as disclosed by a physical examination and by X-rays, was caused by a fracture of the skull. Near the left ear of decedent, for a space of about one and one-half inches long and one inch wide, the bone was crushed, this condition apparently having resulted from the delivery of a strong blow with a blunt instrument.

Slightly more than two weeks later, during the night time, the accused was apprehended by officers in a field located about three and one-half miles south of McGhee, Arkansas, some seventy miles from Bastrop. While refusing to surrender and resisting arrest, he fired five shots at the officers with the revolver that he had taken from decedent; none of them, however, took effect. In turn he received a bullet wound in his right shoulder. After his capture he was taken in an automobile to a doctor in McGhee, who dressed his wounds, then to the hospital at the Louisiana Penitentiary at Angola for treatment and safe keeping.

On or about September 26, 1944, he was transferred to the jail of Ouachita Parish (this adjoins Morehouse Parish), where he was kept and treated until the holding of his trial in Morehouse Parish on October 18 and 19, 1944. His internment in that jail occurred primarily because it was safer and it afforded the accused much better medical facilities and attention than the Morehouse Parish quarters. When tried his shoulder wound had completely healed.

To obtain a reversal, on this appeal, of the conviction and sentence, defense counsel relies upon three bills of exceptions.

The first complaint relates to the trial court's refusal to grant a change of venue, it being urged that the accused could not receive a fair and impartial trial in Morehouse Parish. The contention is made that general prejudice existed against him because of the decedent police officer's popularity, his wide acquaintance, and his numerous family connections throughout that parish.

The cases of State v. Perry, 149 La. 1065, 90 So. 406, and State v. Murphy et al., 154 La. 190, 97 So. 397, are authority for the proposition that a motion for a change of venue is correctly overruled when the evidence discloses that the accused could obtain a fair and impartial trial and when a satisfactory jury is obtained without his having had to exhaust all of his peremptory challenges. Furthermore, in State v. Roberson, 159 La. 562, 105 So. 621, and State v. Collier, 161 La. 856, 109 So. 516, it is said that an application for a change of venue is addressed to the sound discretion of the trial judge and his ruling thereon will not be disturbed unless an abuse of that discretion is shown.

In his per curiam, attached to the first bill of exceptions, the trial judge states:

'In selecting the jury of twelve for trial of this case, twenty-nine jurors were examined on their voir dire--twenty-two from the regular venire and seven from the tales jury list. Out of the twenty-nine prospective jurors so examined, ten were accepted from the regular venire, two from the tales jury list, eight were excused for cause and nine were challenged peremptorily by the defendant.

'After hearing all the evidence, the Court was of the opinion that a fair and impartial jury could be obtained, and subsequent events proved the correctness of this view, since a fair and impartial jury was obtained for the trial of the case without the accused having had to exhaust his peremptory challenges, he having used but nine peremptory challenges.'

Our study of the evidence, along with the fact that defendant used only nine of his twelve peremptory challenges, convinces us that defendant could and did receive a fair and impartial trial. Of the seven witnesses offered by the defense on a hearing of the motion for a change of venue, all of whom were, prominent citizens of and well acquainted throughout Morehouse Parish, two testified to the existence of some bitter resentment toward the accused for a day or so following the police officer's death. But during the five or six weeks previous to the trial, none had heard any expression of anger or prejudice against him; and all were of the firm belief that he would be fairly and impartially tried.

Bill of exceptions No. Two was reserved to the court's overruling of a plea of present insanity. In that plea defense counsel contended for his client the existence of 'present insanity and mental deficiency to such extent that he, the said Solomon Washington, does not understand the nature of the proceedings now being taken against him and to such further extent that he is unable to give to appearer any assistance upon his trial.' Here, the agrument is made that fatal error was committed by ...