State v. Hunt

310 So. 2d 563, 1975 La. LEXIS 3536
CourtSupreme Court of Louisiana
DecidedMarch 31, 1975
DocketNo. 55638
StatusPublished
Cited by6 cases

This text of 310 So. 2d 563 (State v. Hunt) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hunt, 310 So. 2d 563, 1975 La. LEXIS 3536 (La. 1975).

Opinion

SUMMERS, Justice.

Appellant was charged with the violation of Article 80 of the Criminal Code “between the date of October 1, 1972 and March 1, 1973” in that “he being a male over the age of seventeen years, did have sexual intercourse with Marilyn Phelps, with her consent, she being an unmarried female person under the age of seventeen but over the age of twelve years.”

The following bills of exceptions were reserved in the trial court and are relied upon on this appeal to reverse the conviction and sentence.

Bilbl

During examination of the prospective jurors on voir dire, defense counsel challenged Mrs. Oceal Martin for cause because she was a “patrol mother” serving at a school crossing and also had a deputy sheriff’s card. Although Article 403 of the Code of Criminal Procedure, in effect at the time of this trial in April 1974, grants “peace officers” exemption from jury service, the article specifically provides that the exemption is personal to those named and “is not ground for challenge.”

Article 797 of the Code of Criminal Procedure lists the challenges for cause, and the fact that a person is a deputy sheriff is not one of the causes for challenge. In State v. Reese, 250 La. 151, 194 So.2d 729 (1967) the Court ruled that the fact that a prospective juror is a deputy sheriff does not in and of itself disqualify him from jury service. In the absence of a showing that one of the causes set forth in Article 797 exists, the ruling of the trial judge denying the challenge for cause will not be disturbed. State v. Willis, 262 La. 636, 264 So.2d 590 (1972).

Bill 2

A motion to quash the bill of information was filed by the defense alleging that it did not inform the defendant of the nature and cause of the accusation against him as required by Section 10 of Article I of the Constitution (1921). Particularly, it is said that that portion of the indictment charging that the offense occurred “be[566]*566tween the dates of October 1, 1972 and March 1, 1973” lacked specificity and was too general in nature. Alternatively, the motion alleged that the indictment was duplicitous in that it “contains or infers a series or a number of necessarily separate offenses in one and the same count”.

As to the first contention raised by the motion, the complaint that a more exact date should have been given is without merit. Section 10 of Article 1 of the Constitution does not require that the time of the offense be specified in every case. Also Article 468 of the Code of Criminal Procedure makes clear that “The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense”.

Defendant’s argument that time was essential to this offense because during the five month period referred to in the bill of information the prosecuting witness may have arrived at the age of consent, or prescription may have accrued thereby negativing commission of the offense. This contention is without merit. The answer to the bill of particulars and the testimony of the prosecuting witness established that she was born on January 18, 1958. She could not, therefore, have arrived at the age of seventeen, nor could the four year period of limitation prescribed by Article 572 of the Code of Criminal Procedure have accrued during the interval between October 1, 1972 and March 1, 1973.

This bill is without merit.

Bill 3

When his motion for a change of venue was denied, defense counsel reserved this bill. The motion alleges that prejudice exists in the public mind to such an extent that defendant cannot obtain a fair trial. The prejudice, allegedly, arises out of the undue influence of the defendant’s wife and members of her church. Originally defendant was charged with aggravated rape; that this is one of several prosecutions against defendant of recent date in the same court designed by defendant’s wife to inflame the public and “put defendant away” so that his wife can obtain a divorce and get all the community property.

Defendant called several witnesses at the hearing on the motion who testified that the suit had not received unusual or notable publicity in the community. Representatives of the local newspaper and radio testified that defendant’s prosecution had received no unusual publicity. Other members of the community testified that they had not heard of the defendant or the charges against him.

On this record no adequate showing has been made to warrant overturning the trial judge’s ruling denying a change of venue. His discretion in such a matter will not be disturbed unless clearly abused. State v. Didier, 273 So.2d 277 (La.1973).

Bill 4

Shortly before the trial, the district attorney was told that a witness had supposedly heard an inculpatory statement made by defendant. The district attorney then gave written notice to defendant that he would introduce the inculpatory statement. As there were no inculpatory statements furnished in response to defendant’s prayer for oyer, defense counsel objected that he could not begin trial in view of this unexpected development. A continuance was requested by motion and denied. This bill was reserved.

The prosecution did not introduce the statement nor was any mention made of it at the trial. Obviously the issue is moot and defendant suffered no prejudice by the ruling complained of.

Bill 5

While the prosecuting witness was under cross-examination by defense coun[567]*567sel, he attempted to question her with regard to other criminal charges she had made against the defendant. When defense counsel sought to introduce the bills of information to establish the other charges, the State objected and the objection was sustained.

Later in the trial, according to the transcript, defendant placed the bills- of information in evidence while questioning the deputy clerk of court about them. Lengthy cross-examination of the prosecuting witness did take place on the subject of the other charges.

There is no merit to this bill.

Bill 6

On re-direct, the district attorney asked the fifteen year old prosecuting witness: “Q. Marilyn, how old where you when this business started with Ned? A. While I was nine, going on ten.” Defendant objected and moved for a mistrial and moved to strike the question and answer. These were denied and this bill was reserved.

It is the defense contention that the State was producing evidence of another crime six years earlier—the crime of aggravated rape.

Although the testimony of the prosecuting witness does tend to show the commission of another crime by the defendant, the testimony was proper, for defense counsel on cross-examination of the witness asked the witness if she had charged defendant with aggravated rape. He also mentions the charge of aggravated rape in his opening statement. After the question had been asked, defense counsel repeated it, and later during the trial the defense introduced the juvenile file containing a statement of the prosecuting witness to the effect that she had engaged in sexual intercourse with the defendant at the age of nine. Defense counsel not only opened the door to the evidence objected to but also adopted that evidence for the purposes of the defense.

This bill has no merit.

Bill 7

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. McIntosh
275 So. 3d 1 (Louisiana Court of Appeal, 2019)
State v. Piazza
478 So. 2d 1318 (Louisiana Court of Appeal, 1985)
State v. Simmons
390 So. 2d 1317 (Supreme Court of Louisiana, 1980)
State v. Cramer
358 So. 2d 1277 (Supreme Court of Louisiana, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
310 So. 2d 563, 1975 La. LEXIS 3536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hunt-la-1975.