46 So. 2d 262;
1950 La. LEXIS 969
March 20, 1950
SUBSEQUENT HISTORY:
[***1]
Rehearing Denied April 24, 1950.
COUNSEL: Bolivar E. Kemp, Jr., M. E. Culligan, Asst. Atty. Gen., James T. Burns, Dist.
Atty., Covington, France W. Watts, Jr., Franklinton, for plaintiff-appellee.
Ponder
& Ponder, Amite, for defendant-appellant.
JUDGES: Moise, Justice. Ponder, J., recused.
OPINIONBY: MOISE
OPINION:
[*269]
[**266] The defendant, Mrs. Cola Spillman Leming, charged in a bill of indictment with
the murder of Mamie Furr, was tried, convicted as charged, without capital
punishment, and sentenced
“to the Louisiana State Penitentiary at hard labor for the remainder of her
natural life.” From this conviction and sentence she has appealed to this Court, and for
reversal thereof,
relies on thirty-six bills of exception. Thirty-four of these bills were
reserved to alleged errors committed during the course of the trial and two
further bills, to the overruling of defendant’s application for a new trial and
her motion in arrest of judgment.
The record reveals that the defendant and decedent were neighbors, defendant
residing with her husband and two daughters next to the house in which decedent
resided with her husband and her three sons. About three months prior to
decedent’s
[***2] death, defendant and the husband of the
[*270] deceased had left their respective homes and
[**267] lived in New Orleans as man and wife, returning to Bogalusa in the early part
of
January, 1949. On the morning of January 25, 1949, decedent left her home for
work at the box plant where she had been employed for several years. She
returned to her home around noon and soon thereafter she was invited by the
defendant to drink coffee at defendant’s home, and was seen by neighbors
drinking coffee
while seated on the top step of the back porch of defendant’s home.
Immediately after the deceased returned to her own dwelling, she was stricken
with violent stomach pains, accompanied by severe retching and vomiting of
blood. She called another neighbor and told her of drinking the coffee at
defendant’s house and asked her to go for
assistance. Deceased was heard to moan in her agony,
“Oh, Dinah (defendant’s nickname) what did you do to me?” She was rushed to the hospital and died within an hour. Shortly after
defendant learned of decedent’s death, she was seen by a neighbor in a rocking
chair on the back porch of her home with her head in her hands,
repeating
“My God, what have
[***3] I done?
<* * *>”
Several hours after the decedent’s death, her stomach, its contents, the liver
and other organs of deceased were removed by the Parish Coroner; they were
packed in ice and taken by two officers to the State Board of Health Chemical
Laboratory in New Orleans, where they were
delivered to the State Chemist. An analysis showed
[*271] that the organs and stomach contents contained a water soluble
fluoride, classified as a deadly corrosive poison. Other chemical analyses were made of
coffee stains found on the table cloth in use in defendant’s home on January
25, 1949, and it was
proved by tests that these stains contained the same type of poison as was
found in deceased’s organs. On February 2, 1949, the Grand Jury of Washington
Parish returned an indictment, charging defendant with the murder of deceased.
There is contained in this record a Per Curiam written by the trial judge,
in which he has fully set forth and has most comprehensively analyzed all of
the thirty-six bills of exception herein taken, and has amply supported his
reasonings and rulings with appropriate authorities. After a careful
consideration of the record and a study of the law involved,
[***4] we are convinced that the trial judge has, with profound understanding,
correctly disposed of all of the complaints
in this case. Therefore, being in full accord with the findings and rulings of
the trial judge, we quote from his Per Curiam, adopting the views therein
expressed as our own:
“I have signed all the Bills of Exceptions presented to me for the reason I
considered it my mandatory duty to do so under the provisions of Article 499 of
the Code of Criminal
Procedure. However, there are instances where the recital of the facts in
certain bills do not correspond with the testimony taken in connection with
said
[*272] bills. In such a situation the testimony as taken down prevails over the
statement of facts recited in the bill. See
State v. Brantley, 169 La. 315, 125 So. 257. I will, therefore, point out these variances in my treatment of the various
Bills of Exceptions.
“On February 8, 1949, Ott
& Richardson, who were then the attorneys for defendant, filed a rule against
the State of Louisiana requiring the Coroner of Washington Parish and the
District Attorney to show cause why the report of the
State Board of Health as to its findings in connection with the autopsy
[***5] held of the deceased should not be filed in the office of the Clerk of Court.
Counsel further sought to have the defendant in rule file in the office of the
Clerk of Court all exhibits, physical evidence and documents in their
possession or under their control which was intended to be
used by them as evidence by the State in the trial. The rule was heard on
February 9, 1949, and the minutes reflect that after testimony was heard the
Court ordered that the record show that Dr. R. R. Ward, the Coroner, filed the
partial report of the State Board of Health in the office of the Clerk of the
Court. It was further shown by the evidence that this was the only report the
State had at that time. The minutes further reflect that by consent of counsel
for defense the Court over-ruled the motion for the rule, since the State had
complied with
[**268] the essential requirements of the rule. As a matter of fact, Ott
& Richardson stated
in
[*273] open Court that they realized that they were not entitled to all the exhibits,
physical evidence and other matters which the State had intended to use as
evidence in the case, and that they further realized said exhibits would not
have to be
[***6] filed in the office of the Clerk of Court. They not only did not except to
the ruling which dismissed their rule, but consented to
same. Therefore, Bill of Exception No. 1, which is based on the proposition
that I failed to order the exhibits physical evidence and other matters to be
filed in the office of the Clerk of the Court is without merit. Out of
fairness to counsel for defendant, Mr. Ponder, he was not the attorney for the
defendant at that time, so consequently
might not have understood my ruling in dismissing the rule to show cause why
the physical evidence and exhibits should not be filed in the office of the
Clerk of Court.
“Bill of Exception No. 2 was taken to the refusal of the Court to grant to this
defendant a preliminary hearing. The first application that was presented to
me for
my signature in regard to a preliminary hearing was the one presented by Mr.
Ponder on March 8, 1949. Since the Grand Jury of Washington Parish had, more
than a month prior to presentation of the petition for a preliminary hearing,
returned an Indictment for murder against this
defendant, I accordingly, and in the exercise of what I considered a sound
discretion, refused to grant said
[***7] preliminary hearing. Article 154 of the Code of Criminal Procedure
[*274] provides that either the State or defendant shall have the right to demand a
preliminary examination, but that after an indictment is found or an
information filed it is
wholly within the discretion of the District Court, and not subject to review
by any other Court, to order or to refuse to order a preliminary examination.
See also cases of
State v. Mates, 133 La. 714, 63 So. 294, and
State v. Pichon, 148 La. 348, 86 So. 893.
“Bill of Exception No. 3 was taken to the Court’s over-ruling defendant’s Motion
to Quash and Demurrer. The motion sets forth that the indictment did not
inform the defendant of the nature and circumstances of the charge in
conformity with Article 1, Section 10 of the Constitution of the State of
Louisiana, and that the indictment did not set forth with
legal certainty the nature and cause of the accusation, including the
circumstances and events which were necessary to enable the defendant to defend
herself, and further, that the indictment did not set forth the means or manner
employed to accomplish the alleged offense.
“The indictment in this case is in the short form, as provided
[***8] by Article 235 of the Code of
Criminal Procedure, and the Supreme Court in the case of
State v. Capaci, 179 La. 462, 154 So. 419, and the case of
State v. Daleo, 179 La. 516, 154 So. 437, held that the short form of indictment was sufficient to inform the accused of
the nature, cause and circumstances of the accusation,
[*275] and was not
in violation of the constitutional provisions heretofore quoted. See also to
the same effect
State v. Eisenhardt, 185 La. 308, 169 So. 417, and
State v. Matthews, 189 La. 166, 179 So. 69.
“Bills of Exceptions Nos. 4 and 5 will be treated together because they have to
do with a Motion
for a Bill of Particulars filed on behalf of the defendant. On March 11, 1949,
a Motion for a Bill of Particulars was presented to me requesting that I order
the State to furnish to the defendant information as to the cause of death, the
kind and type of poison and its trade name if poison was contended by the State
to be the
means employed; who the State contends administered the poison, and if such was
administered the day and hour it was so administered, the chemical analysis or
reports the State has or seeks to use, and malice or forethought the State
contends
[***9] and plans to employ or use. On March 11, 1949, I over-ruled the defendant’s
Motion for a Bill of Particulars, and the
defendant excepted, reserving Bill of Exception No. 4 to said ruling. However,
on April 7, 1949, another hearing was held in this matter wherein the defendant
requested a Change of Venue, and at that time I vacated and recalled my
previous order which over-ruled the Motion for the
[**269] Bill of Particulars, and at that time
stated the only reason I over-ruled the motion in the first instance was
because the Supreme Court in the case of
State v. Augusta [199 La. 896], 7 So.2d page 177, held that where the short form of indictment was used
[*276] that the defendant in a homicide case was not
entitled to be informed of the manner, place, circumstances and instrument with
which and by which the deceased was alleged to have been slain. However, after
over-ruling the Motion for the Bill of Particulars I ascertained that the
Supreme Court, in cases much later than the Augusta case, Supra, had implied
that where the short form of indictment was used that the defendant was
entitled to
a Bill of Particulars as a matter of right, and the District Court had very
[***10] little discretion in relation to same. Cases so holding:
State v. Bessar [213 La. 299], 34 So.2d page 785;
State v. Chanet [209 La. 410], 24 So.2d page 670;
State v. Masino [214 La. 744], 38 So.2d page 622. Accordingly, I did on April 7, 1949, recall my previous order which overruled
the Motion for the Bill of Particulars, and instructed the State through the
District Attorney to furnish the following information to the defendant; the
cause of death of the
decedent; who administered the poison, if it is the contention of the State
that deceased was poisoned; the day or hour, or about the hour of the
administration of the said poison; the type of poison; and the chemical
analysis or report that the State had in its possession and which had already
been filed by the Coroner with the Court as a public document. Counsel for
defendant reserved Bill of Exceptions
No. 5 to my refusal to require the State to furnish all the information
requested by him in the Motion for the Bill of Particulars. I certainly
consider
[*277] the information which I ordered to have been adequate to enable the defendant
to make out her defense, and if I had granted everything defendant asked in the
[***11] Motion for the
Bill of Particulars I would have been requiring the State to furnish every bit
of evidence upon which it depended for a conviction. Certainly the law does
not contemplate that all such information should be furnished to the defendant
even where the short form of indictment is used.
“Bill of Exceptions No. 6 was taken to my refusal to grant the defendant’s
Application for a Change of Venue. A hearing was had on this application on
April 7, 1949, at which time the defendant produced some 9 or 10 witnesses who
were either her neighbors, friends of hers or her family or relatives. Nearly
all of them lived in a section of Bogalusa known as Richardsontown and within a
few blocks of the home of the
defendant. Practically all of them testified that, in their opinion, the
defendant could not obtain a fair and impartial trial in Washington Parish, but
when questioned by the District Attorney as to how their opinion was formed it
is shown in almost every instance that it was formed as a result of talking to
people in that section of
Bogalusa known as Richardsontown. On the other hand, the State of Louisiana
produced some 12 witnesses who, in my opinion, were leading citizens
[***12] of the parish and lived in different parts thereof. Without exception each of
[*278] them testified that in their opinion the defendant could obtain a fair and
impartial trial in the Parish of Washington. At the
time of over-ruling the application for a Change of Venue I was satisfied from
the testimony of the witnesses, as well as my own personal knowledge of the
matter that the defendant could obtain a fair and impartial trial in this
parish. I am further convinced that I was correct in the ruling for the reason
that when the
Jurors were examined on their voir dire there was but one of them who stated he
had formed an impression about the case and even he admitted said impression
would yield to evidence. Further than this, not more than 30 jurors were
examined before the Jury was obtained, and the time required was less than one
day. The evidence shows that the occurrence took place at
Bogalusa, Louisiana, which is located in the Fourth Ward of Washington Parish,
and the minutes of the Court show that not a single juror from the Fourth Ward
of Washington Parish served on said Jury. Article 293 of the Code of Criminal
Procedure provides that on an application for a
[**270]
[***13] Change of Venue if it shall be established by
legal and sufficient evidence that a fair and impartial trial cannot be had in
the Parish in which the felony shall be charged to have been committed, the
Judge shall order a change of venue to an adjoining parish of the same judicial
district or to a parish of an adjoining district. In the cases of
State v. Roberson, 159 La. page 562, 105 So. 621;
State v. Collier, 161 La. 856,
[*279] 109 So. 516, and
State v. Washington, 207 La. 849, 22 So.2d page 193, it was held that an application for change of venue was addressed to the sound
discretion of the trial Judge and that his ruling thereon would
not be disturbed unless an abuse of discretion was shown. Accordingly, for the
reasons above set forth, I was of the firm opinion that this defendant could
receive a fair and impartial trial in Washington Parish, and accordingly
over-ruled the application for a Change of Venue.
“On May 23, 1949,
shortly prior to the beginning of the trial, counsel for defendant filed a
motion stating that he had learned there was another chemical analysis which
had been sent to the District Attorney and which would be sought to be used as
evidence, and an
[***14] exhibit in this cause which were not filed in the office of the Clerk of
Court, and in order to compel the State to produce the
same defendant, through counsel, moved for a continuance until the production
of said analysis and exhibit. It is stated in this Bill that I refused to
order the final chemical analysis and exhibit produced and that I further
over-ruled the motion for continuance. It is true I over-ruled the motion
for a continuance, but the testimony shows that I ordered the District Attorney
to file the final chemical analysis which was made by Cassius L. Clay, State
Chemist. It was further shown that this final chemical analysis was not
received by the State until two (2) days prior to the
trial. Further
[*280] than this, the recital in the Bill is incorrect in stating that the chemical
analysis and exhibits were not filed by the State in the office of the Clerk of
Court in accordance with order of the Court, for the reason that the order of
the Court, as reflected by the minutes of Thursday, April 7, 1949, showed that
I ordered the State to file with the Court whatever chemical analysis or report
which the State had in its possession on said date. Even though
[***15] I had not previously ordered the State to file the final chemical analysis, I
did order said analysis filed as soon as I ascertained its existence. Further
that this, when counsel for
defendant asked for a continuance due to what he termed was the lateness of the
filing of the report, I asked him what period of time he required, in order to
ascertain if the continuance should be granted. He failed to answer me.
Further than this, I am satisfied that counsel for defendant was not taken by
surprise by this final chemical
analysis because his medical expert, Dr. G. W. Peek, and his chemical expert,
Dr. R. T. Pursley, testified at great length in refutation of everything
contained in said report. I consider defendant’s motion for the continuance to
be without merit under the circumstances, and I could not help
but observe the inconsistency of her counsel’s position. On the one hand
throughout his application for a Change of Venue he had contended he could not
obtain a speedy trial in Washington Parish, and after I called a special Jury
Term of Court for the purpose of
[*281] granting to the defendant a
speedy trial he then altered his position and wanted a continuance.
“Bill
[***16] of Exceptions No. 8 was taken to the over-ruling of defendant’s Motion to
Quash the Petit Jury Venire, due to lack of proper, sufficient and legal
publication of the list of said Venire. Article 183 of the Criminal Code of
Procedure provides as follows:
“The
clerk shall keep a record of the drawings with a list of all the names in the
order they are drawn and showing the week for which they are to serve; and when
the drawing and the proces verbal is complete, shall deliver a copy of the same
to the sheriff, who shall without delay, proceed to summon all the persons on
said list to attend upon the
session of the court and to serve for the week for which they are drawn.
The clerk shall cause a copy of said list and the list of grand jurors to be
published in the official journal of the parish, if there be one, or in some
[**271]
other newspaper published in the parish, or, if there be no official journal or other newspaper in said parish, he
shall post a copy of these lists on the door of the courthouse”. (Italics mine).
“A mere reading of the above provision of Article 183 shows that the law does
not require that the publication of the Jury list be for a period of 30
[***17] days or 10 days or any other particular length of time. See
State v. Voorhies, 115 La. page 200, 38 So. page 964. Further than this I might add that the testimony does not show
[*282] how many times the list of the Petit Jury Venire was published in the
newspaper; it does, however, show that it was published. I accordingly
over-ruled the Motion to Quash the
Petit Jury Venire.
“While the District Attorney was making his opening statement he referred to a
civil suit for separation which had been filed by the defendant in Pike County,
Mississippi. The defense counsel objected to any reference to this civil suit
because evidence of such suit would be irrelevant and prejudicial, and he
therefore moved for the entry of
a mistrial. This was refused and he reserved Bill of Exceptions No. 9. During
the course of the trial I permitted the State to introduce this petition for
separation filed by defendant in the State of Mississippi, and the introduction
of the petition was objected to for the reason that the Act of Congress [28 U.S.C.A. § 1738]
relates only to the introduction of foreign judgments, and further that this
Act was not passed for criminal matters and this constituted
[***18] prejudicial error to the defendant. I permitted the District Attorney to read
the petition over objection of the counsel for defendant, and Bill of
Exceptions No. 17 was reserved. I will accordingly
consider Bills Nos. 9 and 17 together for they relate to the same subject
matter. The District Attorney, in his opening statement, had stated that he
expected to produce witnesses to prove that the defendant and the husband of
the deceased had lived in adultery
[*283] in the City of New Orleans for a period of some two
months shortly before the death of the deceased. He further stated that in
order to show motive on the part of the defendant that shortly prior to the
homicide she went to Pike County, Mississippi, with the decedent’s husband,
Will Furr, and there instituted a suit for separation. At the time of the
introduction of the petition for separation in
evidence he stated that it was done for the purpose of showing motive for the
killing on the part of the defendant. An examination of the certified copy of
the petition for separation will show that it is properly certified under the
Act of Congress by the Chancery Judge and the Chancery Clerk of Pike County,
Mississippi.
[***19] Counsel for defendant
contends that only a judgment can be certified in conformity with the Act of
Congress, and since this document was a petition that the Act of Congress does
not apply. The Act of Congress is not confined merely to Judgments but applies
to any public documents as well. In the case of State v. Marks, 127
La. Page 1031,
54 So. page 340, the Court permitted a certified copy of a marriage license from another state
which was certified by the Clerk of the Court who was also the Judge of the
Court. In the case of
State v. Allen, 113 La. page 705, 37 So. page 614, the attestation of
a Judge of the Circuit Court of a sister state to a paper certified to by the
Clerk of such Court was sufficient to admit the paper in evidence. I was
therefore of the opinion that the document was
[*284] properly certified under the Acts of Congress and was admissible provided it
was otherwise relevant, and as I was of the opinion that it was proper evidence
to go to the
Jury for the purpose of showing motive on the part of the defendant, I admitted
same in evidence. In addition to this, the defendant, under cross examination,
admitted that she went into the State of Mississippi
[***20] and filed said suit, and the witness, Will Furr, the surviving husband of the
deceased, who was a witness for the defense, admitted he
took her there for that purpose. Certainly, under the circumstances, the
defendant could not have been prejudiced.
“During the course of the trial I permitted the District Attorney to read to the
Jury the Proces Verbal of the Coroner’s Inquest. The defendant objected to
this for
[**272] the reason it did not detain or accuse the defendant and was, therefore,
prejudicial, irrelevant and immaterial. I over-ruled the objection and Bill of Exceptions No. 10 was taken to said ruling.
The Proces Verbal of the Coroner’s Inquest which I permitted the District
Attorney to read to the Jury was in the following language:
“‘We the Coroner’s Jury, after viewing the body and reading the report of the
Coroner, conclude that Mamie Popwell Furr came to her death from
Fluoride poisoning on January 25th. 1949, at Bogalusa, La.’
“I admitted the Proces Verbal of the Inquest as evidence of death and the cause
[*285] therefor, and not as evidence of any other fact, and the Proces Verbal of the
Inquest shows that it does not contain any other fact. I consider
[***21] same to have been admissible under Article 35 of the
Criminal Code of Procedure. It is true the Proces Verbal of the Inquest did
not detain or accuse the defendant, and had it done so that would have been a
very good reason why it would have been objectionable.
“During the course of the trial I permitted the State to introduce testimony as
to the contents of the stomach, vomitus and kidney of the deceased. Counsel
for defendant objected to the evidence of any of the organs
taken from the body until it was first shown that they had been properly
preserved and filed under the control and supervision of the Clerk of Court,
who is the custodian of the criminal exhibits, and made so by the Louisiana
Code of Criminal Procedure. I overruled that part of the objection that
required the State to show that the organs had been under the control and
supervision of the Clerk of the Court,
but I further ruled that the State had to show that they were under proper
supervision before evidence of the analysis of the contents would be admissible
in evidence. Bill of Exceptions No. 11 was taken to this ruling. Article 155
of the Code of Criminal Procedure provides that in case of commitment of
[***22] the accused for trial the committing
magistrate shall deliver to the Clerk’s Office of the Court having jurisdiction
all such properties, matters and
[*286] things as may be required in evidence, and it shall be the duty of the Clerk
to receive and keep them safely and securely subject to the order of the Court,
taking care to preserve their identity. However, in the case of
State v. Green, 160 La. page 79, 106 So. page 701, the Supreme Court held that the admission of bloody clothes in evidence after
identification by prosecuting witness held proper, notwithstanding that they
had not been placed in custody of the Clerk of the Criminal District Court. I
am further satisfied from the testimony in this case that the
organs of the deceased were properly preserved and not tampered with from the
time Dr. Ward performed the autopsy until the analysis of the contents of said
organs was made by the State Chemist, Cassius L. Clay.
“Bills of Exceptions Nos. 12 and 19 were taken as a result of my refusal to
enter a mistrial when the
witness, Mrs. Virgil Applewhite, over the objection of counsel, testified that
the decedent told her she was sick and had had a cup of coffee at her neighbor’s
[***23] house, Mrs. Leming, who, of course, is the defendant in this case. The
evidence convinced me that immediately after the deceased drank the cup of
coffee at the home of the defendant she returned to her own home, which was
a distance of only a few feet, and immediately became violently ill. She
called another neighbor, who was the witness, Mrs. Applewhite, in order to get
the latter to go for the husband of the deceased, and when
[*287] questioned by Mrs. Applewhite she stated that she had had a cup of coffee at
the home of Mrs. Leming and that it had
made her sick. This case was one which depended wholly on circumstantial
evidence. Under the circumstances, I was of the opinion that the statement was
an exception to the hearsay because it formed a part of the res gestae. See
State v. Jackson, 153 La. page 517, 96 So. page 53.
State v. Roshto, 169 La. 251, 125 So. page 67.
State v. Gunter, 180 La. page 145, 156 So. 203. In addition to this, I would like to point out in connection with these two
bills that counsel for defendant had made an opening statement to the Jury in
which he stated he expected to prove
by the decedent’s family that she had on several occasions threatened
[***24]
[**273] to commit suicide, and he further stated that he expected to prove that when
the decedent was on the way to the hospital, which was after she had made the
statement to the witness, Mrs. Applewhite, that the deceased had stated it was
no use for the driver to go so fast because she was going to die anyway. At
the time I overruled
counsel’s objection to this evidence I stated to him that I intended to permit
him to prove the statements that he attributed to the deceased for since this
was a case depending wholly on circumstantial evidence that every circumstance,
however, remote, which tended to shed any light on the issue would be
admissible. Since I am satisfied that the statement was made by the deceased
to the
witness immediately after she became ill and was not done so as result
[*288] of any design on her part, I am of the opinion that it was admissible as a
part of the res gestae. But in no event could this defendant have been
prejudiced as a result of the statement, for the defendant herself admitted
that she gave the deceased a cup of coffee and
immediately thereafter, as soon as the deceased returned to her home, several
witnesses saw her vomiting and crying.
[***25] See
State v. Mattio, 212 La. page 284, 31 So. 2nd page 801.
“Bill of Exception No. 13 was taken to the over-ruling by the Court of the
objection of counsel for
defendant to the introduction of a table cloth which was taken from the home of
defendant on the day following the death of the deceased and was kept by the
Chief of Police of the City of Bogalusa in a locker for some 30 days at which
time it was sent to New Orleans to the State Chemist Clay for analysis. I note
that this
Bill of Exception states that the table cloth was picked up several days after
decedent’s death, but this statement in the Bill is in conflict with the
testimony which shows it was the next day after her death. The evidence shows
that Chief of Police Boyd was at the home of defendant on the date of death of
decedent, and at that time
notice (d) the table cloth which was introduced in evidence. He did not obtain
the table cloth on that night, but on the next day while he was in the home of
the decedent sent two of the police officers to the home of defendant, a few
feet away, to obtain the table cloth. The officers
[*289] started to take the
table cloth which was on the table at the time they entered
[***26] defendant’s home and were told by defendant’s son-in-law that that was not the
cloth which was on the table the day before. He then went to a hamper
containing soiled clothes and got a table cloth which he handed to the
officers. They walked out on the back porch of defendant’s
home at which time Chief Boyd arrived, he taking the table cloth from the
officers, and his testimony shows that he recognized and identified this cloth
as being the same one which was on the table the night before. He then took
the table cloth to the police station and locked it in a locker where it was
kept for a period of some 30 days, at which
time he sent it by two Police Officers to the State Chemist where it was
analyzed. The officers corroborated Boyd’s testimony and the State Chemist,
Clay, testified they brought the table cloth to him where he analyzed it and
kept it under lock and key until the day he brought it into Court when it was
introduced in evidence. These facts convinced me the table
cloth was properly preserved and it was not necessary that it be filed in the
office of the Clerk of Court for the reasons stated in disposing of Bill of
Exception No. 11.
“Bill of Exception No. 14 recites
[***27] that I permitted Cassius L. Clay, State Chemist, to testify over the objection
of counsel
for defense what a Dr. Sollman said was a fatal dose of
fluoride and later the length of time it took to kill a person.
[*290] Counsel for defendant complained that this testimony was hearsay and someone
else’s opinion and further that I later refused to permit Dr. Peek to give
similar testimony and
actual case histories of
fluoride poisoning at Charity Hospital. Again, I am forced to call the attention of
the Honorable Supreme Court to the variance of facts as stated in the Bill of
Exception and the testimony taken in connection therewith. The testimony, Page
9 of the transcript, taken in connection with this Bill shows that the witness,
Cassius L. Clay, was asked the following question: ‘Are you in a position, from
your experience with effects of sodium
[**274]
fluoride and your experience of thirty-six years as a chemist, pharmacologist and
toxicologist, to state what is recognized as a minimum fatal dose of sodium
fluoride?‘ Immediately after the question was asked
counsel for defendant objected and I over-ruled the objection for the very
obvious reason that the witness was an
[***28] expert witness, being the State Chemist, and he was asked if he was in a
position from his experience of thirty-six years as a chemist to state what was
recognized as a minimum fatal dose of sodium
fluoride.
Naturally, I over-ruled the objection for the reason I did not know what the
answer would be. It is true the witness did answer that Dr. Sollman gave a
record of a fatal case whereby a person died from four grams of sodium of
fluoride. Counsel did not object to the answer and I was consequently
not called upon to rule thereon. However, I will state that I most probably
would have
[*291] permitted the answer to remain in the record for the reason that the chemist
had previously testified that the text book, ‘A Manual of Pharmacology by
Sollman, Sixth Edition’, was a recognized work on pharmacology. No such
situation
existed, however, when Dr. Peek, defendant expert, was testifying. Page 22 of
the transcript shows that he was asked about case records of deaths from
poisoning which he had read at Charity Hospital. The District Attorney
objected to the Doctor’s giving testimony as to what the records contained on
the ground the records were the best evidence and I sustained
[***29] the objection. Dr.
Peek was further asked about cases in Charity Hospital where actual death
resulted from
fluoride poisoning, and on objection of the State I instructed the witness to confine
himself to cases with which he had had experience. He stated he had not
followed the cases from the accident room and did not actually know the result
thereof, and counsel for defendant did
not seek to elicit further testimony on the point from the Doctor.
“Bill of Exceptions No. 15 was reserved by the defendant when I over-ruled his
objection to the introduction of the table cloth and the chemical analysis of
the said cloth, on the ground that the cloth had not been properly preserved as
an exhibit and the Chemist’s report was not filed in
compliance with the order of the Court or preserved in the manner of preserving
criminal evidence. I have already disposed
[*292] of all points raised in this Bill in my reasons given in disposing of Bills
Nos. 13, 11 and 7.
“Bill of Exceptions No. 16 was taken when I permitted the witness,
Mrs. E. L. Magee, to testify over the objection of counsel as to a certain
statement made by the defendant to the witness twenty-three (23) days before
the death
[***30] of the decedent to the effect that defendant intended to have deceased’s
husband no matter what the cost to get him. The evidence in the case showed
that the
witness, Mrs. E. L. Magee, on the date of January 2, 1949, visited the
defendant at her home immediately after the defendant had returned from New
Orleans where previous evidence showed she had lived in adultery with
deceased’s husband. The witness stated she said to the defendant that she did
not know the defendant had come back from New
Orleans, and the defendant stated that she was back but just because she was
back was no sign she had given up the fight, and that she loved Will Furr and
intended to have him. The purpose of this evidence was to show motive for the
killing on the part of the defendant and the evidence of prior acts,
declarations and threats of the accused, though not part of the res gestae is
admissible when it substantially tends to establish motive or intention of the
accused to commit the crime.
State v. Edwards, 34 La.Ann, page 1012.
“Bill of Exceptions No. 18 was reserved by the defendant when the witness,
[*293] R. G. Rogers, was permitted over objection of counsel for defendant to state
that
[***31]
deceased said, ‘Oh, Dinah, what did you do to me?’ Counsel contended that this
was a hearsay statement and was prejudicial to the accused. The evidence in
the case showed that the nickname of the defendant was Dinah, and it further
showed that immediately after the deceased drank the cup of coffee with the
defendant she went back to her home a few feet away and called to the witness,
Mrs. Applewhite, to
[**275] get her husband because she was sick. The witness Rogers testified that when
Mrs. Applewhite was leaving that he was standing across the street in front of
his store and the deceased was crying and vomiting and made the statement, ‘Oh,
Dinah, what did you do to me?’ I am satisfied this statement was made a very
few minutes after the deceased drank the cup of
coffee, and further than this, the statement was not made to the witness
Rogers, but was a spontaneous statement which was made as soon as the deceased
realized she was so violently ill. I was accordingly convinced that the
statement was made under circumstances which precluded any idea of design or
calculated policy. I am, therefore, of the opinion that the statement formed a
part of the
res gestae. See Articles
[***32] 447 and 448 of the Code of Criminal Procedure;
State v. Dale, 200 La. 19, 7 So.2d 371;
State v. Mackles, 161 La. page 187, 108 So. 410. In connection with this Bill, I would like to reiterate what I have said in
disposing of Bills Nos. 12 and 19 to the effect that
[*294] where a case depends wholly on circumstantial evidence that every
circumstance, however remote, that may tend to shed any light on the subject,
is admissible.
“I disposed of Bill of Exceptions No. 19 in disposing of Bill of Exceptions No.
12.
“Bill of Exceptions
No. 20 was reserved to my ruling sustaining an objection by the state to a
question asked the witness, Frank Singletary, if he had ever been sent to a
reform school or institution. Section 2 of Act No. 127 of 1942 provides the
procedure for commitment of any male child under seventeen years of
age to a reform school, and it further provides that the fact that such person
shall have been committed to a reform school shall never be received in
evidence by any Court in this State thereafter in any proceeding affecting such
person. While it could possibly be argued that this was a proceeding that did
not affect this witness,
I am of the opinion that the
[***33] defendant was not prejudiced by the ruling for the reason that the witness
answered the question. The questions and answers on Page 35 were as follows:
“Q. Were you ever sent to a reform school or institution?
“A. No sir.
“Q. You deny that?
“A. No, I was not.
“It was only after this evidence had
gone in that the state objected to the question
[*295] and I did sustain it for the reason I considered it to be improper under the
law, but I further stated that the witness had already answered the question.
Consequently defendant could not have been prejudiced by the ruling.
“Bills of Exceptions Nos. 21, 28, 29 and 30 all
deal with my refusal to permit the defendant’s expert witness, Dr. Pursley, to
make experiments with sodium flouride as to its solubility in water and in
coffee; to the fact that I would not let him make the experiment to show the
acutely salty taste of several flourides; that I would not let him make the
experiment to
show that 4 grams of either one of the
fluorides constituted a teaspoonful, which would impeach the testimony of the State
Chemist, Cassius L. Clay, to the effect that 4 grams was only one-third of a
teaspoonful; that I would not let him make
[***34] the experiment which would show it would be impossible to put a fatal dose and
dissolve a fatal dose of either one of the several
fluoride compounds in a cup of coffee in the presence of anyone. He further complains
that the experiment would have shown that the
fluoride would have discolored the coffee to such a state as to be ‘unpalatable’ and to
cause such a taste to be untakable, and consequently, the experiment would show
that the only manner
in which a person could conceivably be killed by sodium
fluoride was one who intentionally took a large dose for the purpose of committing
suicide.
[*296]
“Counsel for defense further stated to me that it was his desire to permit the
members of the Jury to taste the result of the experiment in order for them to
ascertain the salty
bitter dose of the coffee mixed with the sodium
fluoride. The compounds by trade names which were sought to be used in the experiment
are
[**276] what is known as Ant-Bane and Bee Branch Roach Killer. The sodium
fluoride content of one of these was 80%, and the sodium
fluoride content of the other was 86%. Too, defendant sought to use in the
experiment sodium
fluoride by Merck which is not sodium
fluoride
[***35] in its pure state, but is sodium
fluoride 95%. There was no evidence in the record to show the commercial trade name of
the preparation containing the sodium
fluoride which resulted in the death of the deceased. I asked the witness, Dr.
Pursley, if he knew how many other cans of like preparation containing sodium
fluoride there were on the market besides Bee-Branch Roach Killer and Ant-Bane, and he
answered that he would not make an estimate on it. He further answered he
would not make an estimate of the amount of sodium
fluoride which was contained in each one on the
market. Since there was no evidence in the record to show the trade name of
the preparation which was swallowed by the deceased, I did not consider it
proper to permit the experiment to be made with the two or three preparation
apparently selected at random by counsel for defendant, with varying
[*297] content of sodium
fluoride, and likewise
varying content of inert ingredients. Further than this, I was of the opinion
that the conditions under which the experiment was sought to be made could not
be shown to be substantially similar to the conditions that existed when the
result contended for occurred. As a
[***36] matter of fact, it was the intention of the witness to use measures instead of
a coffee cup, and it was not even
shown the size of the coffee cup the deceased drank from. In addition to this,
counsel for defendant stated it was his purpose, after the experiment was made,
to permit the members of the Jury to taste the coffee to determine its salty
and bitter taste. I certainly would not have forced members of the Jury to
have participated in the experiment, and for
counsel to have done so might have resulted in embarrassment for the Jury. I
did, however, at the request of defense counsel, permit Dr. Pursley to weigh 5
grams of one of the insecticides and then weigh 10 grams, and at the request of
the District Attorney I permitted him to weigh 4 grams of said substance. I
further permitted
Dr. Pursley to make a demonstration before the Jury of the volume of 5 grams,
10 grams and 4 grams by using a teaspoon. The rule as to the admissibility of
experiments in evidence is very succulently (succinctly) stated in 22 Corpus
Juris ‘Verbo Evidence’, Section 843, page
755, as follows:
“‘In accordance with the fundamental principle that the object of all evidence
is
[*298] the ascertainment
[***37] of the truth with reference to the existence or non-existence of the facts in
controversy, the criterion for the admissibility in evidence of experiments is
whether such evidence tends to enlighten the Jury and enable them more
intelligently to consider the issues presented. Where the experiment is
inconclusive, or
raises a number of collateral issues, or the evidence seems to the Court not to
promise results justifying the time required to hear it, a party cannot insist
upon producing it.’ [See also 32 C.J.S., Evidence,
§ 587.]
“The foregoing principle of law was cited with approval in the case of the
State v. Dunn, 161 La. page 532 [109 So. 56.] In this case the Court permitted the experiment for the reason that there was
not such a dissimilarity of the conditions in connection with the experiment
and the conditions at the time of the occurrence to justify the rejection of
the experiment. The experiment in the Dunn case showed that human blood could
be
detected after being heated, in corroboration of a witness who had testified
that he had found human blood on a sewing machine after the burning of a
building in which the machine was situated. The conditions were very similar
[***38] to the Dunn case. While in the present case a mere reading of the testimony
shows
extensive dissimilarity between the conditions at the time the experiment was
offered and the conditions at the time of the occurrence. Particularly is this
true when the evidence showed that
[*299] the whole purpose of the experiment was to refute the chemical analysis of the
State Chemist, Clay, and I permitted both the Chemist and Dr. Peek to testify
at length in refutation of Clay’s report
containing the chemical analysis. If I had permitted counsel
[**277] for defendant to have made the experiment with the two or three compounds
containing sodium
fluoride which he had selected, then upon the request of the State I would have had to
permit the State in rebuttal to have likewise gone through experiments with
compounds containing sodium
fluoride they had selected, and I am of the
opinion that the results of all of the experiments would not have justified the
use of time required to make them, particularly, in view of the fact that all
of the experts were permitted to testify at length to practically the same
thing as would have been shown by said experiments. It is my opinion that to
have
[***39] permitted said experiment would have tended to have confused rather than
enlighten the Jury.
“I believe I have
disposed of the four Bills of Exceptions being now considered except No. 30,
and the contents of this Bill of Exceptions show that it was reserved on my
refusal to permit defendant’s expert, Dr. Pursley, to testify as to whether or
not New Orleans water did not contain as much
fluoride as the report made by Cassius
Clay of the two pieces of tablecloth which contained 1/2000 part of
fluoride. On page 34 of the transcript, Dr. Pursley was asked by counsel for defendant
[*300] if New Orleans water was used would it be possible for it to have as much
fluoride in it as the report made by Cassius Clay on the two pieces of
tablecloth. Counsel for the State objected on the ground that this was an
impossible question, and I then asked the Doctor if he felt competent to answer
the question. He answered that the composition of the water varies, depending
on the water content of the river. I then asked him if the varying content of
the water would cause him to give a different answer to the question and his
answer was ‘Yes’. So, I naturally sustained the objection, for by the
[***40] Doctor’s own answers to my questions it is shown that any answer he would have
given to the question propounded to him by counsel for defendant could have
been nothing more than a guess, and would consequently have been incompetent
evidence.
“Bill of Exceptions No. 22 was taken to my refusal to
permit a defense witness, Mrs. Geneva Wascom, to testify as to a conversation
over the telephone from her house by the defendant’s husband to a Mrs. Furr,
supposedly the deceased, in which telephone conversation he asked to speak to
her (Mrs. Furr) and further asked her to meet him at 9 o’clock. I refused to
permit this testimony for the reason that, first, it was not shown that the
Mrs. Furr who was called was the deceased, and second, it was impossible for
the witness to relate the whole conversation as she stated she could not hear
the person on
[*301] the other end of the line. She simply was repeating what she heard someone
else say, and even at that only part of the conversation, and
I sustained the State’s objection for the reason that any further testimony
along that line would have been strictly hearsay. I did not, however, as
recited in Bill of Exceptions No. 22, refuse to
[***41] permit testimony relating to decedent’s relation with the defendant’s husband.
There is quite a bit of testimony in the record offered
by the defense in an effort to show that she gave him a belt buckle and he gave
her a robe.
“Bill of Exceptions No. 23 was reserved when I over-ruled defendant’s objection
to a question by the District Attorney to Eugene Furr, son of the deceased,
when he was under cross examination. The District
Attorney asked the boy the following question: ‘Which one of you boys did your
father whip for talking too much in the witness room?’ The answer was, ‘Not
either one of us.’ The District Attorney then asked, ‘Was it you?’ and he
answered, ‘No, sir.’ Counsel for defendant then objected that this was improper
examination and I sustained the objection to the
question in the form in which it was asked. The District Attorney then asked
the witness if his father punished him or one of his two brothers in the
witness room for talking about the case and the witness answered, ‘That if he
did I was not there.’ While the question asked by the District Attorney was not
in the best of form,
I am
[*302] convinced that the answers of the witness removed any question
[***42] that any prejudice was created against the defendant as a result of the
interrogation.
”
[**278] Bill of Exceptions No. 24 was taken when I sustained the State’s objection to
a question by counsel for defendant to the witness Eugene Furr, which question
was: ‘What does J. M. stand
for?’ it being the intended purpose, as shown by the Bill of Exceptions, to
show that the ‘J’ stood for the first name of the defendant’s husband, and the
‘M’ stood for the deceased, and the purpose being to show that these were
circumstances showing that others had motives to rebut the circumstantial
evidence by the State to show the motive of the defendant. The
witness had already testified that he was present when the belt buckle was
bought with the initials on it of ‘J M’. I refused to permit the witness to
testify as to what the letters ‘J M’ stood for because they could have stood
for any number of names. I did, however, permit the witness, as shown on page
21 of the transcript, to testify that his mother’s first name was
Mamie and that the defendant’s husband’s first name was Jesse, and that the
first letter in the name Mamie was ‘M’ and the first letter in the name Jesse
was ‘J’. Further than
[***43] this, I permitted the introduction of the belt buckle in evidence and the Jury
had the right to draw any conclusion they saw fit from said evidence.
[*303]
“Bill of Exceptions
No. 25 was taken to my refusal to permit Dr. George W. Peek, defendant’s
expert, to testify about case records of
fluoride poisoning coming to Charity Hospital. The testimony of Dr. Peek shows that he
was attempting to testify from the case records of Charity Hospital and the
State objected, that the Hospital records were the
best evidence of what they contained and this was my primary reason for
sustaining the objection. It is further shown by Dr. Peek’s testimony that he
had not had any experience with these cases, but he had made some search of
literature and the nature and kind of the literature through which he had
searched was not established. For these reasons I sustained the objection to
the testimony.
“Bill of Exceptions No. 26 was reserved to my refusal to order a mistrial for
the alleged prejudicial remarks and questions asked by the District Attorney in
the cross examination of the witness, Nettie Pope, as to the first thing Will
Furr, the decedent’s husband, did when he returned from his
[***44] wife’s funeral. The question
propounded by the District Attorney to the witness was:
“‘What did you say, you said Will Furr, the first thing he did after he got back
was to make a dive for his wife’s pocketbook?’
“Counsel for defendant objected and asked for a mistrial on account of the
remark by the District Attorney to the effect
[*304] that the husband of the deceased
dived for his wife’s pocketbook. The witness, Mrs. Nettie Pope, had previously
testified under direct examination that Will Furr was looking for his mother’s
pocketbook. Accordingly, I instructed the Jury to disregard the District
Attorney’s remark for the reason that I considered it improper under the
circumstances, but
I am sure the defendant was not prejudiced thereby for the reason that the Jury
must have understood, as did I, that the witness had testified that Furr was
looking for his mother’s pocketbook.
“Bill of Exceptions No. 27 was reserved by counsel for the defendant to the
sustaining by the Court of an objection by the State to a statement
made by one Lillie Furr. It is stated in the Bill that Lillie Furr accused the
defendant of having poisoned the decedent before the decedent’s death or before
[***45] there was any evidence or suspicion of poison having been taken by the
deceased.
“The testimony on page 18 of Mrs. Hulon Savoy, who was asked the question under
direct examination
by counsel for defendant, is as follows:
“‘Q. Mrs. Savoy, when Lily Furr got to the hospital what did she say?’
“Lily Furr was a sister-in-law of the deceased and a third person to this
proceeding, and while the facts recited in the Bill of Exceptions state that I
sustained the objection of the State to
remarks made by Lily Furr accusing the defendant of
[*305] having poisoned decedent before decedent’s
[**279] death, the testimony which is in the transcript taken in connection with the
Bill of Exceptions does not show what the import of the question to Mrs. Savoy,
the witness, actually was, for the witness was simply asked, ‘When Lily Furr
got to the
Hospital what did she say?’ The witness never answered the question because the
State objected and I sustained the objection on the ground that to have
permitted the witness to repeat what Lily Furr, a third person, had said at the
Hospital would have constituted the rankest hearsay. I accordingly sustained
the State’s objection.
“Bills of Exceptions
[***46] Nos. 28, 29 and 30 have
already been considered in disposing of Bill of Exceptions No. 21.
“During the closing argument of the District Attorney, he stated that defendant
Dinah Leming had sworn under oath to two of the most damnable lies he had ever
heard. Counsel for defendant objected to the remark on the ground that it was
prejudicial and calculated to prejudice the minds of the
Jury, and moved for a mistrial, which was refused by the Court, and he
accordingly reserved Bill of Exceptions No. 31. I was not requested by counsel
for defendant to instruct the Jury to disregard the remarks of the District
Attorney, but was simply requested to declare a mistrial. I, however, did not
consider the remark made by the District Attorney as objectionable, for the
reason
[*306] that it was nothing more than a denunciation of the defendant based upon the
evidence which had been adduced during the trial. See
State v. Thomas, 111 La. 804, 35 So. 914; and
State v. Gallo, 115 La. page 746, 39 So. page 1001;
State v. Dreher, 166 La. 924, 118 So. page 85. See also Article 381 of the Code of Criminal Procedure.
“Bill of Exceptions No. 32 was taken to my sustaining an objection by the State’s
[***47] counsel to a statement made by defense
counsel to the Jury in his argument. This bill states that my ruling
constituted commenting upon the evidence. Counsel objected to my ruling and
requested a mistrial, which was refused, and he reserved this Bill. The
Statement which counsel made to the Jury was, as shown by the transcript of
testimony on page 36:
“‘Cassius Clay has been thrown
out of more Courts than anyone in the State.’
“Counsel for the State, as shown by the testimony, did object on the ground that
there was no evidence in the record of that. I simply stated that I sustained
the objection and made no comment one way or the other as to whether or not
there was any evidence in the record as to whether the Chemist,
Cassius Clay, who testified for the State, had been thrown out of more Courts
than any one in the State. I hardly see how anyone could contend that I
commented on the evidence by simply sustaining the objection. But I would like
now to make the comment that there was not one scintilla of evidence before the
Jury
[*307] that Cassius Clay, State Chemist, had ever been thrown out of more Courts than
anyone in the State. There was no evidence along this line
[***48] whatsoever.
“Bill of Exceptions No. 33 was taken to my granting Special Charge No. 1
requested by the State on the ground that the charge was misleading, was not
a proper statement of the law, was a direct commentation upon the evidence in
the case, and as such was prejudicial.
“The Charge which the State requested, and which was given by me, is in the
record and is as follows:
“‘I charge you, Gentlemen of the Jury, that any physical evidence or reports
obtained by the State, that were admitted in evidence, that were not part of
the
Coroner’s Jury records and that were not covered by any previous orders of this
Court, are admissible on the trial of this case, notwithstanding the fact that
said evidence or reports were not filed in the Clerk of Court’s office of this
Parish.’
“During the course of the trial there had been so many objections raised by
counsel for defendant as to the admissibility of evidence on the
ground that it was not placed in the custody of the Clerk of Court, or that it
was not properly preserved or identified, that I considered it nothing more
than fair to charge the Jury the Special Charge that all of the reports
[**280] and other evidence that were admitted
[***49] in
[*308] evidence were admissible, notwithstanding the fact that they had not been
filed in the Clerk of Court’s office of the
Parish. There is no question but that this is the law, as heretofore pointed
out in previous Bills of Exceptions which have been disposed of.
“Counsel for defendant requested that I deliver Fourteen (14) special
instructions on behalf of the defendant to the Jury. I granted three (3) of
these Special Charges and refused the other eleven (11).
“Accordingly, Bill of Exceptions No. 34 was taken to my refusal to give the
special charges requested by the defendant. I denied Special Charge No. 2
which had to do with the character of the accused, because as shown by the
Charge it is stated that affirmative testimony of expressed oral comments of
friends and acquaintances upon the
reputation of the accused is not always required, and that evidence that the
character of the accused had never been denied or doubted, or even discussed or
spoken of among his acquaintances, though negative in form, is always
admissible and often of the highest value. I did not consider that part of the
Charge as to the character of the accused having ever been denied or doubted
[***50] as being
a correct charge, but I did consider the fact that his character had not been
discussed or spoken of among his acquaintances was always admissible and often
of the highest value. My General Charge will show that this latter is
contained therein. Accordingly, I refused to give Special Charge No. 2.
[*309]
“I refused to
give Special Charge No. 3 for the reason that it is covered by the General
Charge.
“I refused to give Special Charge No. 6 relative to circumstantial evidence for
the reason that it is covered by the General Charge.
“I refused to give Special Charges Nos. 7, 8,
9, 10, 11, 12 and 13, because as the Charges show, they were requested on the
ground that they were offenses of less magnitude than the offense charges, and
therefore responsive verdicts to the indictment. Act 161 of the Legislature of
the State of Louisiana for the year 1948 amended and re-enacted Article 386 of
the Criminal Code of Procedure so as to set out
for certain specified cases those included offenses which may be responsive
verdicts, and upon which the Judge shall charge the Jury. Section 1 shows that
the only responsive verdicts which may be rendered and upon which the Judge
shall
[***51] charge the Jury where the indictment charges the offense of murder are:
“1. Guilty as charged.
“2.
Guilty without capital punishment.
“3. Guilty of Manslaughter.
“4. Not guilty.
“Since Act 161 of 1948 is the last expression of the Louisiana Legislature what
constitutes responsive verdicts, and since the defendant in no wise attacked
the constitutionality of said Act, I considered it my duty to respect and obey
the
provisions thereof.
[*310]
“I, of course, was not afforded an opportunity to rule on the constitutionality
of the Act for the reason that the defendant did not attack the
constitutionality thereof by filing a motion in Court as a special plea wherein
the pertinent provisions of the Constitution were set forth, together with the
ground of the alleged unconstitutionality of the statute. I, therefore,
considered it my mandatory duty to charge the Jury under the provisions of Act
161 of 1948. See State v. Kavanaugh, 203 La. Page 1,
13 So.2d page 366, wherein the Supreme Court stated on the application for a rehearing [13 So.2d]
at page 382 of the opinion as
follows:
“It is well settled that this court can not consider a plea of
unconstitutionality of a statute
[***52] of its own motion but that such a plea must be filed in the district court as
a special plea wherein the pertinent provisions of the Constitution are set
forth, together with the ground of alleged unconstitutionality of the statute.
This was
not done and it is too late for the defendant to attempt to do so at this time
<* * *>.”
See also
State ex rel. Porterie, Attorney General, v. Jones, 181 La. page 390, 159 So. page 594,
State v. Maines, 183 La. page 499, 164 So. 321, and
State v. Sonier, 107 La. page 794, 32 So. page 175.
[**281]
“I refused to give Special Charge No. 14 requested by the defendant which was to
the effect that the Jury could qualify any one of the several verdicts with the
recommendation that the sentence of the
[*311] Court be suspended upon good behavior. The charge would not have been proper
for one of the
verdicts the Jury could have returned was guilty as charged and under the
provisions of Article 530 of Code of Criminal Procedure the Court cannot
suspend sentence when the defendant is convicted of a capital offense. She was
actually convicted of a capital offense with a qualified verdict. I therefore
refused said Special Charge.
“Bill of Exceptions
[***53]
No. 35 was taken to my over-ruling defendant’s motion for a new trial. This
motion for a new trial contained nothing more than the various errors which it
is alleged were committed during the course of the trial and formed the basis
of the Bills of Exceptions heretofore disposed of, and I accordingly
overruled said motion for a new trial.
“Bill of Exceptions No. 36 is a Motion in Arrest of Judgment and a Supplemental
Motion in Arrest of Judgment. The original motion in arrest of judgment
contains nothing more than the various errors which it is alleged were
committed prior to and during the
course of the trial and which have been heretofore disposed of in the
consideration of the various Bills. I accordingly overruled the original
Motion in Arrest of Judgment.
“Article I of the Supplemental Motion in Arrest of Judgment simply realleges and
reiterates the allegations set forth in the original Motion in Arrest of
Judgment. However,
in Article II of the
[*312] Supplemental Motion in Arrest of Judgment, the defendant states that a new
trial should be granted for the reason that manifest errors and prejudicial
statements made by the District Attorney in his closing address appealing
[***54] to local pride prejudiced the minds of the Jury against the defendant. He
sets forth under the letters a, b, c and d under Paragraph II of this
Supplemental Motion the statements which the District Attorney allegedly made
to the Jury in his closing address. While I am of the opinion that the
District Attorney did not make the statements to the Jury, as set out under
paragraphs
a, b, and c of Paragraph II of the Supplemental Motion in Arrest of Judgment,
yet it is in truth and in fact unnecessary to consider whether or not such
statements were made in argument by the District Attorney, for the reason that
no objection was made at the time the alleged objectionable remarks were made,
and
in order to avail the defendant such objections had to be made at the time of
the making of the remarks. See
State v. Briscoe, 30 La.Ann. page 433;
State v. Dalcour, 145 La. page 1008, 83 So. page 223; and
State v. Henry, 200 La. page 875, 9 So.2d page 215. See also
State v. Bell, 146 La. page 89, 83 So. page 419 to the effect that language used in argument and even when objected to must be
inserted in a bill of exceptions. As to the complaint to the remark of the
District Attorney which is shown
[***55] under the letter ‘d’ of paragraph II of Supplemental Motion in Arrest of Judgment, I have already
disposed of this remark by the District
[*313] Attorney in disposition of the Bill of Exceptions No. 31. I might further
state that the District Attorney in arguing the Supplemental Motion in Arrest
of Judgment emphatically
denied making the statements attributed to him by defense counsel.
“In Paragraph III of the Supplemental Motion in Arrest of Judgment, the
defendant states that at least two of the jurors have made public statements
that the jury convicted the defendant because she tried to get the venue
changed declaring that she could not get a fair and
impartial trial in Washington Parish, and because she got an outside lawyer to
represent her in the Change of Venue and they returned the verdict of guilty
because of this.
“Article 517 of the Code of Criminal Procedure provides that a motion in arrest
of judgment lies only for a substantial defect patent upon the face of the
record, and Article 518 of the Code of Criminal Procedure provided that no
defect that is merely formal and cured by verdict or that cannot be ascertained
without an examination of the evidence is good
[***56] ground for arresting judgment. The case of
State v. Calloway, 174 La. 134, 140 So. page 2, holds
[**282] that
a motion in arrest of judgment cannot be aided by evidence. Even if such a
statement had been made by a member of the Jury, of which I frankly state I
have grave doubts, this would not be sufficient to grant the motion in arrest
of judgment, for the reason there is no substantial defect
patent upon the face of the record. For the
[*314] above reasons, I accordingly refused to grant the Motion in Arrest of Judgment.”
No error being found in the ruling of the trial judge, the judgment is
Affirmed.
PONDER, J., recused.
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