State v. Howard , 162 La. 719 ( 1926 )

If the district judge had not admitted — or approved the statement in the bill of exceptions — that no other evidence whatever was introduced except the testimony of the sheriff and that of Russell and Howard, or if the judge had not approved the statement that no other facts were proven except the facts stated in the bill of exceptions, I would concur in the majority opinion that the question presented would be a question of sufficiency of the evidence of guilt. The Constitution deprives this court of jurisdiction over the question of sufficiency of the evidence of guilt in a criminal prosecution. But, when the trial judge approves the statement in the bill of exceptions that there was no evidence to support a particular and necessary averment in the bill of indictment or information, the question presented is a question of law; id est, whether the defendant could be legally convicted without proof of that particular averment. The bill of information in this case charges that the defendant Howard "did willfully transport intoxicating liquor for beverage purposes." It is conceded in the majority opinion in this case that the district attorney could not legally convict the defendant Howard without proving that he transported the liquor willfully; that is to say, with knowledge that he was transporting intoxicating liquor. And the statement of facts in the bill of exception, approved by the district judge, is that there was no evidence offered to prove that the defendant Howard had knowledge that he was transporting intoxicating liquor. In fact, it is admitted by the judge that the only evidence offered on that subject was the affirmative or positive testimony that he did not know that he was transporting intoxicating liquor when he was driving the other man's automobile.

The important declaration in the bill of exceptions is this declaration, approved by the judge, viz.: "The state offered no other evidence." I quote here the facts stated in the bill of exceptions literally and in full, viz.:

"The sheriff, A.J. Thigpen, testified that he was called to investigate an automobile accident near Ruston; that he went to the scene and there found from 60 to 75 quarts of whisky in the back end of a Chevrolet coupé; that, upon being informed that the occupants of the car had been injured in the accident and had gone to a doctor's office in Ruston, he went to the office of the doctor and arrested Ed Howard and W.A. Russell; that the arrest was made something like an hour after the accident and that he, the sheriff, neither saw nor observed anything to indicate that either of the men arrested had been drinking; that Russell had told him in the presence of Howard that Howard was driving the car at the time of the accident; and that Howard made no denial of Russell's statement.

"The state offered no other evidence.

"W.A. Russell, who was charged jointly in the bill of information with the defendant Howard (charge being the transportation of intoxicating liquors for beverage purposes) and whose case had been previously disposed of, testified that he, Russell, left New Orleans, La., alone early Wednesday night in a Chevrolet coupé, his destination being El Dorado, Ark.; that in the rear of the car, which was locked, was a number of cases of whisky; that he drove all night and while crossing the Mississippi river on the ferry boat at Natchez, Miss., Thursday morning, the defendant Howard asked where he was going, and, upon being told El Dorado, Ark., requested that he, Howard, who was en route to Smackover, Ark., be allowed to ride as far as El Dorado; that he allowed Howard to ride with him; that, having driven all night and being tired, he asked Howard if he could drive a Chevrolet, and Howard having stated that he could, Howard took the wheel; that Howard began to drive while at or near Rayville, La., and when near Ruston the car was overturned, injuring both occupants; that he, Russell, did not know Howard before the day of the accident; that the back of the car was not opened after Howard got in the car, nor was Howard told that there was liquor in the rear of the car; that neither party was drunk nor drinking during the time they were together; that Howard had no way of knowing that there was liquor in the car he was driving at the time of the accident; that after the accident a passing car was hailed and he and Howard went to a doctor's office in Ruston, where they were arrested about an hour after the accident.

"Howard testified that he had not been in New Orleans within a week or 10 days prior to the accident; that he reached Natchez, Miss., a day or two before the accident, looking for work; that, being unable to find work in Natchez, he decided to go to Smackover, Ark., and there look for work; that he went to the ferry boat and made request of autoists on the ferry for a ride in the direction of Smackover, and that, when he approached Russell, Russell agreed to give him a ride; that he did not know Russell prior to the date of the accident; that he was driving the car at the time of the accident; that he did not know there was whisky in the car."

In the per curiam, the judge says that, "taking into consideration all of the facts and circumstances testified to by the two accused parties, in connection with the testimony of the sheriff," he, the judge, believed that the defendant Howard did know that there was whisky in the car that he was driving. The judge admits that there were no other facts or circumstances proven, as the basis for the judge's belief, except "the facts and circumstances testified to by the two accused parties, in connection with the testimony of the sheriff." And so, when the judge says that he did not believe the statement of the defendant and of the owner of the car that the defendant did not know that there was intoxicating liquor in the car, the judge says nothing more or less than that he believed — notwithstanding the evidence in the case — that the defendant did know that there was whisky in the car.

I quote the per curiam literally and in full, viz.:

"Taking into consideration all of the facts and circumstances testified to by the two accused parties, in connection with the testimony of the sheriff of Lincoln parish, the court believes and is convinced that defendant Howard did know that there was a whisky in the car he was driving when the car was wrecked; and the court believes that both of the accused parties testified falsely when they testified that Howard knew nothing about there being whisky in the car. The court believes that both of the accused parties are rum runners, and were engaged in that undertaking when their car was wrecked in Lincoln parish, and was found to contain a large quantity of intoxicating liquor. Defendant Howard had driven the car from Rayville to Choudrant, a distance of 50 or more miles, and had ridden in the car with Russell from Natchez, Miss.

"But, even if Howard did not have actual knowledge that the car contained a cargo of liquor, as claimed by him, the burden of proof of that fact rests upon him. The testimony did not convince the court that he did not know it; on the contrary, the evidence all taken together convinces the court that he did know it. In its refusal to give the second special charge requested, the court is guided by what it deems to be the jurisprudence of the Supreme Court of the state in such cases. He is presumed to know what he was doing and to have intended to do what he was doing, viz., transporting intoxicating liquor. See State v. Quinn, 131 La. 494, 495, 59 So. 913.

"Furthermore, the offense charged is a misdemeanor, and the act of one of the parties participating in it is the act of all.

"Signed and ordered to be filed this 30th day of September, 1926. [Signed] S.D. Pearce, Judge."

I concur in the majority opinion that the burden of proof was not on the defendant Howard, but on the state. The last reason given by the judge for his ruling is a begging of the question, viz.: That the act of one of the parties participating in the offense was the act of both. The very question before the judge was whether the defendant Howard could be convicted of "participating in the offense" without any evidence that he knew that the other man was committing the offense.

The bill of exceptions that was reserved to the overruling of the motion for a new trial presents a clear-cut question of law — not confused with any question of fact whatever — viz.: Can a defendant in a criminal prosecution be convicted legally without any evidence at all of one of the essential facts alleged in the bill of indictment or information? We have ruled consistently heretofore that a question of law is presented for decision, in a bill of exceptions taken to the overruling of a motion for a new trial, when it is stated in the bill of exceptions approved by the judge that there was no proof of one of the essential elements of the crime charged, or of one of the essential averments in the indictment or bill of information. State v. Wilson, 141 La. 410, 75 So. 95, Ann. Cas. 1918D, 789; State v. Wells, 147 La. 822, 86 So. 268; State ex rel. Fernandez v. Perez,151 La. 526, 92 So. 45; State v. Bush, 156 La. 973, 101 So. 382; State v. Gani, 157 La. 231, 102 So. 318; State v. Giangosso,157 La. 360, 102 So. 429; State v. Dunnington, 157 La. 369, 102 So. 478.

In State v. Wilson, supra, it was said:

"To set aside the conviction in such a case would not be deciding a question of fact or of sufficiency of evidence, but would be maintaining that a person accused of crime cannot be legally convicted without proof of the commission of the offense."

In State v. Dunnington, supra, after announcing that this court had not jurisdiction over the question of sufficiency of the evidence of guilt, it was said:

"But where there is no evidence at all of a fact essential to a conviction, it becomes a question of law, which this court will consider."

I concede that the district judge alone had the right to judge of the credibility of the two witnesses who testified that the defendant did not know that there was whisky in the automobile that he was driving; but, when the judge concluded that the witnesses were not worthy of belief, it left the judge without any evidence at all before him, as to whether the defendant Howard knew that there was whisky in the car that he was driving, except the testimony of the sheriff, which, it is admitted, tended only to prove that the defendant Howard did not know that there was whisky in the car.

The majority opinion in this case virtually is that a district judge may destroy the right of appeal in a criminal case by stating in the bill of exceptions what he arbitrarily believes from the evidence, when it is admitted that the evidence is all the other way or that there is no evidence at all to prove what the judge believes.

The majority opinion in this case advances a theory tending to demonstrate merely that, in spite of the evidence to the contrary, it is possible that the defendant Howard knew that there was intoxicating liquor in the other man's car, which he drove. But the question in this case is: Was it right to convict the defendant without any proof of such knowledge on his part? I concede that guilty knowledge may be proven by circumstantial, as well as by direct, evidence. But, although the judge says in the per curiam that his belief is founded upon "all of the facts and circumstances," he qualifies the statement by saying:

"All of the facts and circumstances testified to by the two accused parties, in connection with the testimony of the sheriff."

And those facts and circumstances could not possibly furnish proof of what the judge believed.

Of course, it is possible that the defendant Howard was guilty of the offense for which he must pay the penalty; but, if our judgment is correctly based only on the evidence in the case, and upon all of the evidence that was introduced, or rather upon the admitted lack of evidence on an important averment in the bill of information, a great injustice has been done.