State v. Wilson

• Decision Date: 24 April 1950
• Docket Number: No. 39761,39761
• Citation: 217 La. 470,46 So.2d 738
• Parties: STATE v. WILSON.
• Court: Louisiana Supreme Court

Page 738

46 So.2d 738

217 La. 470

STATE v. WILSON.

No. 39761.

Supreme Court of Louisiana.

April 24, 1950.

Rehearing Denied May 29, 1950.

Lubin F. Laurent, New Orleans, for defendant and appellant.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Frank H. Langridge, Dist. Atty., L. Julian Samuel, Asst. Dist. Atty., Gretna, Willis C. McDonald, Asst. Dist. Atty., New Orleans, D. Elmore Becnel, Asst. Dist. Atty., Reserve, for appellee.

PONDER, Justice.

The defendant was convicted of murder and sentenced to be electrocuted. He has appealed from the conviction and sentence.

We are presented on this appeal with fifteen bills of exceptions taken to the ruling of the trial judge by counsel for the defense.

Bill of exception No. 1 was taken to the refusal of the trial judge to grant the defendant additional time to subpoena ten additional witnesses to be heard on the trial of a motion for a change of venue. Counsel for the defendant subpoenaed fifty witnesses to appear at the trial of the motion. Forty of the witnesses were present when their names were called by the sheriff and ten were absent. The returns of the sheriff showed that the ten absent witnesses were either out of the parish or could not be found. The trial court would not grant additional time to summon witnesses but ordered instanter subpoenas to issue for the absent witnesses.

Counsel contends that the defendant was entitled to these additional witnesses as a matter or right. He cites authorities to the effect that a defendant is entitled to additional witness when they are essential to his defense.

We find no fault with the authorities cited but the trial of a case cannot be delayed when the defendant is afforded the testimony of forty witnesses at the hearing of a motion of this nature and there is no showing that the defendant could have procured witnesses who would have established his contention that he could not obtain a fair trial. In the absence of any showing that the defendant has been injured by this ruling of the court the exception is without merit.

Bill of exception No. 2 was taken to the overruling of a motion for a change of venue. Counsel for the defendant states that the witnesses heard before a recess of court stated that the accused could not get a fair trial in the Parish of St. Charles and that those testifying after the recess of court stated that the accused could get a fair trial in that parish. He contends that there was prejudice, collusion and coercion of the witnesses who testified after the recess of court.

There is nothing in the record to support the contention. The three witnesses who testified prior to the recess of the court did not testify that the accused could not get a fair trial in the parish. Two of them testified that he could get a fair trial and the other witness did not know whether the accused could get a fair trial or not.

Bill of exception No. 3 was taken to the overruling of an objection to the reading of the purported confession by the district attorney to the jury in his opening statement.

The trial judge in his per curiam states that he instructed the jury that the opening statement of the district attorney could not be considered as evidence and that he is merely detailing what he expects to prove. Under the provisions of Article 333 of the Code of Criminal Procedure it is the duty of the district attorney in his opening statement to explain the nature of the charge and the evidence by which he expects to establish it. A conviction and sentence will not be set aside where the district attorney reads a confession to the jury in his opening statement if the confession is subsequently admitted in evidence. State v. Cannon, 184 La. 514, 518, 166 So. 485.

Bill of exception No. 4 was taken to the refusal of the trial judge to sustain an exception to a question propounded by the district attorney to the coroner. Counsel objected to the question on the ground that it calls for an assumption of certain facts which the coroner could not possibly know because he was not present at the time of the homicide and that his answer presumes that a blow was struck while the deceased was in bed. The question propounded was, 'Will you explain the lack of blood between the pillow and the foot of the bed where the body of Mrs. Petrolia was lying?' In answer to the question, the coroner stated, 'Well, I think, gentlemen of the jury, that it is very easily explained.' 'It is a medical fact.' 'This individual, Mrs. Petrolia, was struck a blow while lying in bed * * *' Counsel for the defendant interrupted the witness and objected to the testimony on the grounds heretofore stated. We see no merit in this bill because the coroner was testifying as an expert witness based on the facts which he had discovered by his inspection of the premises and the deceased.

Bill of exception No. 5 was taken to the admission of twelve objects found at the scene of the homicide. Counsel contends that these exhibits should have been introduced separately and not as a group. The various objects had been separately identified by the witnesses who had testified in the case. There is no merit in this bill.

Bill of exception No. 6 was taken to the introduction of certain exhibits in evidence. These exhibits were a stick with blood on it found on adjoining premises; hair from the head of the deceased and her husband, who had been killed at the same time, used in making a microscopic examination in comparison with the hair found on the stick, etc.; a specimen of hair found on the stick and a specimen of hair found from the deceased's bed sheet. Counsel contends that these exhibits were not admissible in evidence because the chemist from the F. B. I. could not identify the hair as belonging to any particular person and could not identify the blood stains as blood coming from any particular person. The testimony of this laboratory expert was to the effect that the hair found on the stick was similar to the hair of the deceased and that the hair found on the bed sheet came from the body of a member of the Negro race. The objection goes to the weight and not to the admissibility of the evidence.

Bill of exception No. 7 was taken to the introduction of a wrist watch belonging to the deceased which the accused had pawned shortly before his arrest. The objection seems to be principally leveled at the fact that the witnesses identifying the watch as being the property of the deceased were unable to state the serial number of it and call particular attention to all of its characteristics. From the per curiam of the trial judge, it appears that the watch was identified as being the property of the deceased before it was introduced into evidence and that the objection was mainly leveled at the fact that the witnesses could not give the serial number of the watch. The objection goes to the weight and not the admissibility of the evidence.

Bills of exceptions Nos. 8, 9 and 10 were taken to the rulings of the trial court regarding a confession made by the defendant on July 18, 1946. It appears from the evidence that the State placed a witness on the stand to prove that the confession was free and voluntary. While the witness was testifying a controversy arose as to the admissibility of the confession. The trial judge had the jury withdrawn and the admissibility of the confession was inquired into out of the presence of the jury. The State placed several witnesses on the stand who testified to facts showing that the confession was free and voluntary. These witnesses were cross-examined by counsel for the defendant and he was afforded an opportunity to controvert the testimony offered by the State. The only witness placed on the stand by counsel for the defendant was one who testified to a contradictory statement made by a deputy sheriff. After the matter was submitted, the court ruled that the State had laid a proper foundation for the admission of the confession. Counsel reserved a bill of exception to the ruling. The jury was recalled and the State placed two witnesses on the stand who were present at the time the confession was made. These witnesses testified to facts showing the confession was free and voluntary. The State offered the confession in evidence and counsel for the defendant objected to its admission on the ground that he had a right to controvert its admissibility.

Article 1, Section 11, of the Constitution of Louisiana provides:

'No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel confession of crime; nor shall any confession be used against any person accused of crime unless freely and voluntarily made.'

It is provided in Article 451 of the Code of Criminal Procedure, as follows: 'Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.'

It is well settled that a confession cannot be admitted in evidence until after it is shown, not only affirmatively but by proof beyond a reasonable doubt, that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. State v. Henry, 196 La. 217, 198 So. 910; State v. Graffam, 202 La. 869, 13 So.2d 249; State v. Ellis, 207...