State v. Carter

19 So. 2d 41, 206 La. 181, 1944 La. LEXIS 740

• Court: Supreme Court of Louisiana
• Decided: June 26, 1944
• Docket: No. 37438.
• Status: Published

Opinions

HIGGINS, Justice.

The accused was charged in a bill of information, in the first count, with feloniously attempting to murder D. F. Goodwin, a deputy sheriff of East Baton Rouge Parish, and, in the second count, with attempting to murder B. E. Norwood, also a deputy sheriff, on December 25, 1942. After certain pleas were overruled, there was a trial on the merits resulting in a verdict of “Guilty as charged.” He was sentenced to five years at hard labor in the State Penitentiary, on each count, the sentences to run concurrently.

The defendant appealed and relies upon twelve bills of exception for the annulment of the verdict and the sentences.

Bills of exception Nos. 3, 5, 6, 7, 8, 9 and 10 were reserved to the court’s ruling in refusing to exclude three deputy sheriffs and special investigators of the District Attorney’s office from the courtroom during the trial and overruling the accused’s-motion that they be sequestered with the other witnesses, and permitting them to testify in chief and rebuttal over the defendant’s repeated objections.

Article 371 of the Code of Criminal Procedure is as follows:

“The judge may, at any stage of the trial, order the sequestration of the witnesses. As soon as such order shall have been given it shall be the duty of the sheriff to take charge of the witnesses and to-remove them to , a place where they shall not be able to see or hear any of the proceedings taking place in court. Nor shall there be, while they shall be sequestered,, any communication between them and others or between them and any witness who shall have testified. .Any disregard of these provisions by a witness shall disqualify him from testifying and shall subject him to punishment for contempt; provided, that the judge may in all cases, in his-discretion, permit any witness to testify;, provided, further, that the issuance of such order shall not deprive either party of the right of calling or examining as a witness, one who shall not have obeyed the order of sequestration, when such party shall show that the witness remained in court or otherwise disobeyed the order without the knowledge and without the connivance of the party calling him.”

The entire per curiam of. the trial judge on these bills is as follows:

“Counsel for defendant moved for a sequestration of the witnesses in this case. As I understand the law, the ordering or refusing to order sequestration of the witnesses is within the sound discretion of the Court.

“The Court ruled and ordered a sequestration of the witnesses except the Court ordered that the rule would not apply to the deputy sheriffs nor to the special investigators of the District Attorney’s office.

“The accused was charged with the attempted murder of two deputy sheriffs, Messrs. Goodwin and Norwood. Although the Court refused to apply the rule to the other deputy sheriffs, the Court did exclude from the court room and include in the rule the two deputies whom the defendant attempted to murder.”

In the case of State v. Wheeler, 173 La. 753, 755, 138 So. 656, 657, the exception was reserved to the court’s ruling in permitting, over defendant’s objection, a witness to testify, who had remained in the courtroom after testifying under direct and cross-examination, and was recalled by the State, to rebut the testimony of the defendant, the court having previously ordered the witness sequestered. After citing Article 371 of the Code of Criminal Procedure, in upholding the district court’s ruling, the Court stated:

“The italicized proviso of the quoted article of the Code of Procedure is specific and unambiguous. It provides that whether or not a witness shall be permitted to testify, under the circumstances presented in this bill of exception, is a matter which is addressed to the sound discretion of the court. In the absence of a showing that the ruling complained of was arbitrary and unreasonable, the exercise of the trial court’s discretionary powers is beyond the control of the appellate court. There is no such showing here. On the contrary, the court’s per curiam to the bill is not questioned. It is as follows :

“ ‘Corporal Curren, the witness in question, remained in the court room after having testified as a witness for the state. He was recalled by the state after the defendant rested her case.

“ T am certain that the defendant suffered no injury in my permitting the said witness to testify. I am of the opinion that I reasonably exercised the discretion granted me in Code of Criminal Procedure, article 371.

“ ‘After permitting the recall of the witness, I offered the defendant through her counsel, the opportunity of cross-examining him, and of calling other witnesses.’

“We therefore find that the ruling complained of is correct. It is supported by the following recent decisions of this court, viz. State v. Sisemore, 151 La. 675, 92 So. 274; State v. Keife, 165 La. 47, 115 So. 363; State v. Wilson, 168 La. 903, 123 So. 614.”

See also C.J.S. [Criminal Law], Vol. 23, page 377, par. 1010, page 381, par. 1011; Freddy v. State [89 Tex.Cr.R. 53] 229 S.W. [533], 534.

It is clear that the trial judge does not have an absolute and unreviewable discretion, under the above quoted article. If district courts could make rules and rulings that would in effect nullify the provisions of the article, the right granted .to the accused therein would be a useless and vain one. If the discretion vested in the trial judge is arbitrarily and unreasonably exercised to the prejudice and injury of the defendant in obtaining a fair and impartial trial, his action in that respect should be set aside by granting a new trial.

In the instant case, the defendant, a colored man, was charged with attempting to murder two white deputy sheriffs. His plea was self-defense. The' two deputies who were assaulted and who were excluded from the courtroom, on the defendant’s motion, testified that they were shot by the accused without-any cause or provocation. The defendant, on the other hand, testified that he shot at the deputies with one of their own guns after being compelled to disarm them in order to save his own life, after he had been severely and brutally beaten by one of the deputies with the gun. The three deputy sheriffs and district attorney’s investigators were permitted to remain in the courtroom during the entire trial, although counsel for .th.e defendant, in his motion for a sequestration before the trial started, apprised the judge of the fact that these witnesses would be used against the accused and would testify to purported verbal admissions said to have been made by the defendant. The purpose of removing the witnesses from the courtroom to a position where they could neither hear nor see what was taking place in the trial, is to have them testify to what they know in a truthful and accurate way and to prevent a witness from being guided and influenced by the testimony of the others. Collins v. State, 77 Tex.Cr.R. 156, 178 S.W. 345, 351; State v. Brookshire, 2 Ala. 303; Roberts v. State, 122 Ala. 47, 25 So. 238.

In Ray v. Com., 241 Ky. 286, 43 S.W. 2d 694, at page 696, the Court said:

“The other ground for reversal is meritorious, and it is sustained. It is this: Before the attorney for the commonwealth stated the case to the jury, the defendant requested of the court that the witnesses be put under the rule and excluded from the courtroom. * * *

“The case of Roberts v. State, 100 Neb. 199, 158 N.W. 930, 932, Ann.Cas.l9l7E, 1040, is a case in many respects like this, and in the opinion reversing the judgment it is said:

“ ‘The defendant demanded that the state’s witnesses be separated so as not to hear each other’s testimony. * * * In our state it has been considered to rest in the discretion of the trial court. This court, has said that the practice of so separating the witnesses “is a good one, as it tends to elicit the truth and promote the ends of justice.” ’ * * *

“We are not saying the witnesses against Charley Ray have testified falsely, but we do say that under the peculiar facts of this case it was an abuse of discretion to overrule the defendant’s motion, and* for that error this judgment is reversed.”

In Martinez v. State, 96 Tex.Cr.R. 138, 256 S.W. 289, 290, the Court stated:

“The rule was invoked as to all the witnesses by the appellant. Tepfer was excused from the rule over objection. The bill evidencing this matter is qualified by the statement of the learned trial judge to the effect that Tepfer was an officer, and was only permitted to remain in the room a part of the time, and, when any witness was giving testimony about which Tepfer could possibly know, he was sent out of the room. We know of no authority holding that police officers by reason of such office are entitled to be excused from the rule. The contrary seems true. * * * ”

In Holder v. State, 136 Fla. 880, 187 So. 781, at page 782, it was held:

“The matter of excluding witnesses from the inquest and making exceptions to the rule invoked is within the discretion of the presiding judge, but, we think, that in the circumstances reflected by the bill of exceptions there was an abuse of it in this case. It was a distinct advantage to the State to let this witness hear and observe other witnesses and then testify himself, an advantage to prevent which the rule was put into force. No excuse whatever for excepting him appears in the record.”

It was unquestionably a distinct advantage to the State and a disadvantage to the defendant for three of the State’s witnesses to remain in the courtroom and hear the testimony of both the State’s and the defendant’s witnesses who preceded them on the stand before they gave their testimony in rebuttal. The trial judge does not assign any reason why he overruled the defendant’s motion for the sequestration and the exclusion of these witnesses from the courtroom but simply states that the law granted him the discretion to do so. He also overruled the defendant’s objections to these witnesses testifying, in chief, and rebuttal on the ground that he had the discretion to permit them to remain in the courtroom.

It is our opinion that our learned brother below erred in exercising his discretion as he did, under the facts and circumstances of this case, and that the accused suffered serious injury and prejudice to his substantial rights as a result thereof. The very essence of the case was whether or not the accused shot the deputy sheriffs without provocation or in self-defense. The ruling of the trial judge in permitting these three witnesses to remain in the courtroom and hear and see what transpired, for all practical purposes deprived the accused of his right to cross-examine them.

Counsel for the State rely upon the case of State v. Bates, 140 La. 833, 835, 74 So. 165. In that case the defendant was charged with murder and convicted of manslaughter.' A complete statement of the court with reference to bill of exception No. 3 is, as follows:

“The bill relating to the exception of a certain deputy sheriff from an order for the severance of the witnesses was not well taken. The judge states that ‘it is a rule of court that all court officers are exempt from an order of severance.’

“We know that this is the usual practice in district courts. The matter of separation of witnesses is one in the sound discretion of the trial judge.”

We do not think that under the provisions of Article 371 of the Code of Criminal Procedure district judges have the right to make a rule of court that all court officers are exempt from the order of sequestration of witnesses regardless of the importance of the witness’ testimony in the case. If this were true, then the trial judges, by making such a rule of court, could, to a great extent, nullify the provisions of the above article and, in certain instances, deny the defendant a fair and impartial trial. We reiterate, the article does not give a judge an absolute and unreviewable discretion but one that must be exercised in such a way as not to deprive the accused of his right to a fair and impartial trial.

To the extent that the above cited case is in conflict with our ruling in'the present ■one, it is overruled.

Bill of exception No. 1 was reserved when the trial judge overruled the ■defendant’s motion to quash the information, and Bill of exception No. 4 was reserved when the trial judge declined to force or require the State to elect under which count of information it intended to place the accused on trial. The State takes the position that the motion to quash was not specific enough to cover the contention that the defendant committed two distinct offenses and should be charged in separate informations with each of them. On the question of election, the district attorney argues that the defendant’s motion was filed too late.

In the case of State v. Cannon, 185 La. 395, 169 So. 446, 447, this Court said:

“* * * But the killing of each was a separate homicide, a separate crime, and since the repeal of article 218 of the Code of Criminal Procedure by Act No. 153 of 1932, it was necessary that two separate indictments be returned if the state intended to prosecute this defendant for each homicide. The repeal of article 218 of the Code followed the decision in the case of State v. Roberts, 170 La. 127, 129 So. 144, 145. The law in this respect is now the same as it was formerly, which is that:

“ ‘The fact that a person commits several separate and distinct crimes at the same time, or in immediate, consecutive order, is no reason why he should not be indicted and tried for each of said crimes. This rule is so universally recognized and applied that any citation of authority would be superfluous.’ It matters not what pleas may have been entered by Cannon in the other case or what rulings may have been made thereon or what the final result may have been (or may yet be under his application to the United States Supreme Court for writs); he is entitled in the present case, when and if it is called up for trial by counsel for the state, to enter all such pleas and to ask for all such relief as the law allows, even though both cases arose out of one and the same continuous transaction. The reason is that in law the two crimes are separate and distinct.”

In view of the above holding, it is apparent that if the defendant’s motions to quash and elect were drawn properly and filed timely, he would be entitled to relief. It is not necessary for us to further consider these issues because we have concluded that reversible error was committed with reference to the first series of bills considered. Upon a new trial, the complaints and questions presented by bills Nos. 1 and 4 and the other bills herein may not again arise.

For the reasons assigned, the verdict of the jury and the sentences of the court are annulled and set aside, and the defendant is granted a new trial.

PONDER, J., takes no part.