State v. Deschamps

41 La. Ann. 1051

• Court: Supreme Court of Louisiana
• Decided: December 15, 1889
• Docket: No. 10,414
• Status: Published

Opinions

The opinion of the Court was delivered, by

Bermudez, C. J.

The defendant was prosecuted for murder, tried, convicted and sentenced to death.

On appeal, he complains that the District Judge erred :

1. Tn refusing a continuance.

2. Tii hearing an incompetent witness.

3. In admitting certain testimony.

4. Tn giving an improper charge.

The record contains three bills and a motion for a new trial to the refusal of which, a bill Was taken.

The following is an extract from the statement of the trial Judge, contained in the bill taken to his refusal to grant a continuance.

“(hi the 29th April, when the accused was brought to the Bar for trial, he informed the Court that he had no counsel and asked the Court to appoint counsel for him, such as the Court might select.

“ After positive refusal bjr some half a dozen members of the Bar the appointment was made and the case was continued to 1st May.”

On that day, the counsel thus appointed made affidavit, stating “ that he is entitled to an indulgence from the Honorable Court, of a reasonable time in which to'prepare a suitable and valid defence, which counsel believes there is in this case •, that ho has not had sufficient time to do so, as less than forty-eight hours have intervened since his assignment as counsel and the calling of the accused to the Bar of‘ the Court for trial; that he has been altogether unable to prepare the case, involving, as it does, the life of a human being, embracing points of law and fact, requiring much study and research, which he has been unable to devote to it.”

"When the case was called, counsel moved for a continuance, based on the affidavit made by him, which was refused by the Court.

Por so doing, the trial judge states in the bill taken to his ruling :

“The time allowed, J considered sufficient to enable counsel to ascertain what defence, if any there was, and to obtain from the accused the names of witnesses by whom any exculpatory facts, or matters of defence could be proved, and such information might have been ground for affidavit and motion for continuance.

“The counsel for accused in answer to inquiry by the Court said, he would require about a month to prepare suitable defence.

“ As the Court will be in vacation from 1st Jnnc to 1st September, this simply meant a continuance for four months'.

“The accused never in any way intimated to the Court that he had any defence.

“ He never mentioned any fact which he expected, or desired to prove; nor did ire ever ask for delay to procure testimony, or to have ■ witnesses in his behalf, summoned.

“ I considered the affidavit insufficient, in that, it does not indicate any lino of defence. It does not mention any fact to be proven, nor does it ask for delay, to have witnesses summoned on behalf of the accused. On such showing, I did not consider that I would bo justified in granting a continuance.”

■ The question here presented is: Whether, under the showing made by the counsel appointed to the accused, by the Court, a continuance ought or ought not to have been granted.

When, arraigned, the accused pleaded not guilty and, when called upon to stand his trial on the 29th of April, he announced that he had no counsel and asked that one be appointed to him. The Court at once assigned counsel and continued the case to the day after the next, May 1st.

There is nothing to show when the counsel appointed, was informed or notified of his assignment and when he accepted the same, except, his appearance on the day fixed for the trial, when he made the affidavit and motion for a continuance.

Supposing, however, that he knew of the appointment and accepted it at the very moment that it was made, it is evident, that a very short time intervened between that of the appointment and that when the case was called for trial, surely less than forty-eight hours.

. Now, on that day, 1st May, the counsel, a sworn officer of the Court, in whom the Judge placed reliance, to whom the life of the accused had been entrusted, who had no personal interest to serve, nothing to gain by delaying a trial, makes affidavit, that he is entitled to the indulgence of the Court for a reasonable time, in which to prepare a suitable and valid defence, which he believes there is in the case; that he has not had sufficient time to do so, as less than forty-eight hours have intervened ; that, he has been altogether unable to prepare the case which involves questions of fact and law, which require much study and research, which he has been unable to devote to it.

The affidavit should have been taken for true and, if true, surely was sufficient authority, under the circumstances, to grant a continuance, for a reasonable time.

No Court can expect from counsel, appointed by it, to defend an accused in a capital case, that they should assume the great responsibility imposed upon them, without being allowed a reasonable time to impure into the facts and the law, — should they require it, — -and no Court should compel such counsel to proceed with the defence of such a case, under such circumstances, when the counsel, under his solemn oath, declares that he believes there is a defence to be made; but that he has not had sufficient time to prepare it, when the time intervening between the time of appointment and that of the trial is less than forty-eight hours.

We have been shown no precedent and we know of none, in which a continuance for a reasonable time, made for the first time in a capital case, under such circumstances, has not been granted

In State vs. Ferris, 16 Ann. 425, which was a murder case, the then Court said in reference to accused in criminal cases :

“ The law securing to them the assistance of counsel did not intend to extend a barren right, for of what avail would be the principle of counsel” * * * if, on the spur of the moment, without an opportunity of studying the case, the former should be compelled to enter upon an investigation of the cause.

In the case of State vs. Horn, 34 Ann. 100, which was a penitentiary case only, counsel appointed to the accused having made affidavit that he had not time to prepare a defence and having retired on the overruling of his motion, and the accused having made affidavit for the allowance of time to prepare, and the Court having refused a continuance, this Court considered the showing sufficient, quashed the verdict and remanded the case.

In State vs. Boyd, 37 Ann. 781, which was a capital case, the Court had appointed two members of the Bar to defend the accused, allowing them three hours for preparation. At the expiration of that time they made affidavit and a motion for further delay, as they had not had sufficient time to prepare the defence.

This Court there held that, in a capital case, under such a showing, the trial judge ought to have allowed time and that the ruling was erroneous.

In State vs. Simpson, 38 Ann. 24, which involved a penitentiary offense only, the Court said, that the right to bo heard by counsel, guaranteed by the Constitution to the accused, was not an empty formality, but an inestimable privilege and that counsel should be allowed reasonable time to prepare the defence. It ruled accordingly.

In State vs. Brooks, 39 Ann. 241, in which the penalty was no more than .hard labor, this Court, on an affidavit of the accused, fortified by that of his counsel, asking for time to prepare, reiterated the language, with approbation, found in the 16‘tli Ann. p. 424.

In all these prosecutions, the verdicts were quashed and the cases remanded.

The rulings in State vs. Wilson, 33 Ann. 261; State vs. Doyle, 36 Ann. 91; in State vs. Johnson, 36 Ann. 852; have no real bearings upon the question under consideration, as the facts are materially dissimilar.

In the Wilson case the affidavit was not made by the appointed attorney. It did not state that there was a valid defence, that the case involved questions of fact and law which required much study and research and that counsel needed a reasonable time to prepare such defence. In the instant case, the affidavit is made by the assigned counsel, who distinctly states these special causes for a continuance. The oath of the attorney was entitled to much weight, as he was the best judge of the condition of the case he ivas called on to defend, of his readiness to do so, as the prosecution was for a capital offence and the application was made for tha first time, and had not unnecessary delay for its purpose.

In the Boyle case, there was no complaint. The accused had not asked for the appointment of counsel, had not prayed for a continuance owing to the absence of his counsel, and the case had proceeded regularly without the aid of counsel.

In the case of Johnson, the accused had asked a continuance on account of the absence of his counsel, which the Court declined, assigning counsel to him, who did not make affidavit that he had not had and required time to prepare, and who invoked every technical defence which legal ingenuity could suggest.

In the instant case, the counsel appointed to defend the accused, made affidavit and asked time to prepare, -under circumstances and in a form which entitled him and the accused to a reasonable delay and charged injury to the accused in the motion for a new trial.

The reasons assigned by the district judge in justification of his refusal are lengthy. In a portion of his statement, found in the bill of exceptions and which we have not deemed necessary to transcribe, he says substantially, that several counsel appointed by him had either declined to act, or had not been accepted; that others, chosen by the accused, had refused to represent him.

All this may be true, but how does it militate against the motion for a continuance made by the attorney appointed by the court and accepted by the accused?

The reasons given by the trial judge declining the continuance, may be condensed as being:

1. The accused refused ro apeept counsel appointed to him by the court.

2. The time which had intervened between the last appointment of counsel and that of the motion for a continuance, was sufficient to ascertain the defense, If any, and tó summon witnesses.

3. The accused never intimated that he had any defense, never mentioned any fact which ho expected or desired to prove, never asked delay to procure testimony, or to summon witnesses.

4. The affidavit does not indicate any line of defense, mentions no fact to be proved, asks no time to have witnesses summoned.

5. The time asked was one month. Allowing that time would have been allowing four months.

I.

The law provides, R. S. 992, “that every person shall be allowed to make his full defense by counsel learned in the law, and the court before whom he shall be tried, shall immediately, upon his request, assign to him such counsel as he shall desire. ”

Under this provision, the accused was not bound to accept any counsel appointed to him. He had a right to refuse counsel assigned whom he thought he should not accept, and he was under no obligation to adduce reasons to justify his conduct. The law makes it the duty of the court “to assign him such counsel as he may request. ”

II.

How would the trial judge know that forty-eight hours or less were sufficient, how could he know that more than forty-eight hours was not necessary to enable counsel to prepare a defense in a case, of the nature of which he could officially then have had no knowledge ?

He is not presumed to know, before trial, the facts upon which a prosecution rests or a defense is based.

Whatever knowledge or information he may have acquired on the subject, it is his duty officially to ignore and such knowledge must necessarily before the trial be imperfect, as it is only after trial that the facts may be considered as developed.

How could he know what points of law could bo raised, either by the prosecution or by the accused, and what degree or extent of research and study was necessary for a proper vindication of the constitutional rights of the accused?

From an expression which has escaped the trial judge, it would seeih that he momentarily lost sight of the presumption of innocence in favor of an accused, before trial, for lie says, that the time allowed was sufficient to enable the counsel to ascertain what defense, if any, there was.

• An accused who has pleaded not guilty has always a defense to make and rights to vindicate, not only to repel the charges against him, but also, however guilty he may be in fact, to have himself tried in the manner and form prescribed and required by law, particularly in capital cases.

Of course, if the accused could be presumed conclusively to be guilty and was so, lie could not have established his innocence, and the assigned attorney would not have needed and could not have required any time to prepare the defense, but on the contrary, if the accused was to be presumed innocent he could have urged a defense and surely in a prosecution of such gravity, — less than forty-eight hours would have been too short a delay for the newly appointed counsel to ascertain the facts and prepare the law, the more so if such counsel be an utter stranger to the accused, whose language he did not speak, and had been recently admitted to the bar, and therefore was not experienced in the defense of capital cases.

It is worthy of notice that in the motion for a new trial, the appointed attorney reiterated that lie had not had time to prepare, that he had liad no opportunity of properly conferring with the accused, not even understanding- his language, that improper evidence had been admitted, that an important erroneous charge had been given by the court operating to the prejudice and injury of the accused.

It is palpable from all the circumstances of the case, that the complaint of the assigned counsel that he has not had and needed further time to prepare, is well founded and that 1ns motion for delay made for the first time ought to have been favorably considered.

III.

It was not necessary that the accused should intimate his defense or mention his witnesses to the judge or to any one else. It is a possibility that he may have had a defense which he intended to sot up suddenly, to the surprise and defeat of the prosecution, or that his witnesses, if any he had, would be present in court without being summoned, and that he would have had something to make, by such a course.

He is entitled for his defense to all the means which the law does not forbid, or which it allows him, and no one has a right to inquire into them unless when he intends to procure wanting evidence or testimony which ho had secured and of which circumstances would deprive him otherwise.

IV.

Neither the counsel, nor the accused, was bound to divulge a line of defense. Surely, the counsel, if so bound, could not have done so, without having had sufficient time to inquire and without having ascertained the same.

V.

It does not follow that, because counsel asked one month to prepare the defense, that the court was bound to allow that time and still less four months.

The court might have allowed less than one month, or might have allowed more if necessary. The happening of the coming vacation term to which allusion is made would not have closed the division of the court before which the accused had been for trial. The act of 1880 (No. 98, sec. 7) does not force an adjournment. It loaves it discretionary with the judges of the Criminal District Court for the Parish of Orleans to arrange between themselves, so as to suit their convenience; but in so doing, the law expects that the judges shall keep in view, due regard to a proper and speedy administration of criminal justice.

We, therefore, conclude that, as the trial judge has not exercised a just legal discretion in declining to allow further time, and as the accused was thus unduly denied an important privilege, a great right and the full justice, to which he was entitled, the bill of exception was well taken and the complaint on appeal is well found.

This view of the case dispenses us from the necessity of considering the other points, or matters to which our attention has been called by the assigned counsel.

In ruling as we have done, far has been from our mind, any intention, in the lea.st to refleojt on the character and motives of the trial judge, which are above all suspicion, as we hold him in great respect. We only rule that, in an extreme desire to vindicate the public law, he has erred in not sufficiently safeguarding the rights of the accused.

It is, therefore, ordered and decreed that the verdict of the jury be ' quashed, that the judgment and sentence thereon be annulled and reversed, and that this cause be remanded to the lower court for further proceedings according to law.