State v. Wilson

• Decision Date: 15 February 1961
• Docket Number: No. 45344,45344
• Citation: 127 So.2d 158,240 La. 1087
• Parties: STATE of Louisiana v. Clarence WILSON.
• Court: Louisiana Supreme Court

Page 158

127 So.2d 158

240 La. 1087

STATE of Louisiana v. Clarence WILSON.

No. 45344.

Supreme Court of Louisiana.

Feb. 15, 1961.

Robert J. Mack, Grover L. Covington, Kentwood, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Duncan S. Kemp, Dist. Atty., Amite, W. M. Dawkins, Asst. Dist. Atty., Denham Springs, Leonard E. Yokum, Asst. Dist. Atty., Hammond, for plaintiff-appellee.

HAMLIN, Justice.

The defendant, Clarence Wilson, appeals from his conviction of the crime of aggravated rape (a violation of LSA-R.S. 14:42) and his sentence to death therefor.

During the course of trial, twenty-five bills of exceptions were reserved; in this Court, twenty-four bills are presented for consideration--Bill of Exceptions No. 4 having been abandoned.

Bill of Exceptions No. 1 was reserved when the trial court overruled a motion to quash the indictment filed against defendant. This motion averred that the indictment was fatally defective, in that it did not set forth the date of the alleged offense.

In an indictment filed against the defendant on November 25, 1959, it was alleged that the defendant had committed the crime of aggravated rape on the 30th day of September in the year of Our Lord One Thousand Nine Hundred and (blank). On February 18, 1960, the trial court permitted the State to amend the indictment by inserting in the blank space thereof the word 'fifty-nine', which had been inadvertently omitted; on the same date, the amended indictment was read to defendant, and he pleaded not guilty by reason of insanity. The motion to quash, supra, was filed on March 14, 1960; it was overruled on March 24, 1960, when defendant was again arraigned and pleaded 'guilty by reason of insanity and not guilty.'

LSA-R.S. 15:234 provides:

'No indictment shall be held insufficient for * * * omitting to state the time at which an offense was committed where time is not of the essence of the offense, nor for stating the time imperfectly, * * *.'

LSA-R.S. 15:253 recites:

'No indictment shall be quashed, set aside or dismissed or motion to quash be sustained * * * on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court in its discretion permit. The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury. * * *'

Aggravated rape is a capital crime and does not fall within the provisions of the statute of limitations or prescription. LSA-R.S. 15:8. Time is not of the essence of the crime, and the amendment of an indictment charging the commission of such offense by an insertion of the year during which the alleged crime was committed cannot as a general rule prejudice the defendant where his defense is not that of alibi. Cf. State v. Wichers, 149 La. 643, 89 So. 883. This Court has also held on a number of occasions that an indictment should not be held invalid or insufficient for stating incorrectly the date of the alleged crime, if the date or time be not of the essence of the offense. State v. Williams, 143 La. 424, 78 So. 662.

The instant indictment was amended before the first arraignment and the entry of the first plea, before the second arraignment and the entry of the second plea, and before the trial had commenced; it was, therefore, amended within due time. An examination of the record discloses that the defendant suffered no prejudice and was not impeded in his presentation of proof because of the amendment to the indictment. The trial court neither abused its discretion nor acted contrary to the provisions of the statutes quoted supra. State v. Walters, 16 La.Ann. 400; State v. Cornelius, 118 La. 146, 42 So. 754; State v. Anderson, 125 La. 779, 51 So. 846; State v. Anderson 136 La. 261, 66 So. 966; State v. Johnson, 228 La. 317, 82 So.2d 24; State v. Blankenship, 231 La. 993, 93 So.2d 533.

Bill of Exceptions No. 1 is without merit.

We believe that Bills of Exceptions Nos. 2 and 13 should be discussed together.

On March 14, 1960, defendant filed a second motion to quash the indictment, averring therein that the indictment was null and void because of the systematic exclusion from the Grand Jury of persons of the Negro race, in violation of defendant's rights to due process of law and equal protection of the laws under the Constitution of the United States, particularly the Fourteenth Amendment. Alternatively, defendant averred that should it be found that all Negroes were not systematically excluded from the Grand Jury, then that the numbers found on the Grand Jury were so few as not to be at all representative of the numbers of Negro citizens eligible to serve on the Grand Jury within Tangipahoa Parish, and that the number actually included in the Grand Jury were added to the Grand Jury solely for the purpose of giving the appearance of compliance with due process and equal protection granted to your petitioner under the Constitution of the United States.

The Minutes of the trial court of March 24, 1960, recite:

'The motion to quash on ground that the accused was denied his right by a systematic exclusion of Negroes on the panel, of Petit and Grand Jurors, which was argued and overruled by the Court, to which ruling the counsel for accused excepts and reserved bill to said ruling.' (Emphasis ours.)

The record recites:

'By Mr. Mack: Your Honor, on the next motion to quash it will probably take quite a good bit of testimony.

'By the Court: On what is it based?

'Mr. Mack: On the systematic exclusion of members of the negro race from the Grand Jury panel which indicted the accused.

'By Mr. Yokum: Mr. Yokum quotes from the following: 110 So.2d., p. 530, State of La. v. Andrew J. Scott, 'Criminal Law: Contention that defendant had been denied equal protection of law by systematic exclusion of negroes from the Jury was not reviewable on bill reserved to overruling of motion to quash indictment.' In the body of the decision it says: this matter could not be considered on a motion to quash.

'By the Court: The Court sustains the State's objection to taking this question up on a motion to quash.

'By Mr. Covington: To which ruling of the Court counsel for defendant objects and reserves a formal bill of exceptions and asks that the motion and the ruling of the Court be made part of the bill.

'By the Court: The motion to quash based upon the Defendant's contention that he has been denied his equal rights by a systematic exclusion of the colored race from the Grand Jury and the Petit Jury Venire is overruled.

'By the Court: The question of whether the inclusion or exclusion of colored people from the Jury is not reviewable on a motion to quash, as shown by decision of the State Supreme Court and reviewed by the United States Supreme Court and it is reported in 110 So.2d, p. 530--State of La. v. Andrew of J. Scott.' (Emphasis ours.)

We find no bill of exceptions in the record as to the ruling of the trial court insofar as 'Grand Jurors' are concerned.

The record does not disclose that any motion to quash the indictment predicated on the ground that defendant was denied equal protection of the laws because of exclusion of Negroes on the Petit jury panel was ever filed

Bill of Exceptions No. 2 sets forth that the defendant 'entered a motion to quash the indictment for the reason that in the selection of the Petit jury panel there was systematic exclusion of members of the Negro race, the defendant being thereby deprived of his constitutional rights and particularly those rights guaranteed under the 14th Amendment to the Constitution of the United States.' (Emphasis ours.) Thus it appears that this bill applies to a motion which was never filed. In short, no bill was reserved to a motion which was overruled, and Bill of Exceptions No. 2 was reserved to the overruling of a motion which was never filed

Trial herein began on March 28, 1960; the Minutes reflect that on March 30, 1960, defendant filed a motion to quash the Tales jurors and the regular panel for the reason that there was not a ratio of Negroes drawn on the regular panel or on the tales list. The motion recites that it is a motion to quash the Panel of tales jurors. It avers that the Panel of tales jurors submitted for the purpose of completing the jury panel in the instant cause was selected in an illegal and unconstitutional manner and in violation of defendant's rights under the Constitution of the United States, particularly the Fourteenth Amendment, in that members of the Negro race were systematically excluded from the panel. Alternatively, it is averred that if Negroes were not systematically excluded from such panel, then that the number included were so few as not to be at all representative of the number of Negro citizens eligible to serve on such panel within Tangipahoa Parish.

Evidence was heard on the above motion, which evidence was addressed Not only to the tales jurors but to the general venire.

The trial court overruled defendant's motion to quash the panel of tales jurors 'for the reason that there has been no reasons shown or proven of the systematic exclusion or systematic inclusion of persons of the colored race,...